Causes and execution of matrimonial dispensations

605. 1. If an impediment stands in the way of a matrimony to be contracted, this must first be removed, so that matrimony can be validly and licitly entered. Moreover, matrimonial impediments, whether diriment or impedient, can be removed in three ways: a. by removal of the cause (bond, disparity of cult, abduction); b. by lapse of time (age); c. by dispensation, which is the ordinary mode of removing matrimonial impediments.

Dispensation is the relaxation of a law in a special case.² Where dispensation is treated, speech can be only about impediments of ecclesiastical law; for impediments of divine law can be removed by no human power.

2. The faculty of dispensing is granted for the external forum or for the internal forum. The internal forum is twofold, sacramental and extrasacramental.

a. Dispensation for the external forum has force also for the internal forum, but one who has received power of dispensing for the external forum cannot use it for the internal forum only.

b. If someone has used the power of dispensing in an occult impediment for the sacramental internal forum, and afterward the impediment becomes public, the matrimony is indeed valid, but a new dispensation must be sought for the external forum. But if the power of dispensing has been given for the non-sacramental internal forum, a new dispensation for the external forum is not necessary.³

3. Since matrimonial impediments are invalidating or prohibiting laws of the universal Church, no one can dispense in them except the supreme pontiff and one who has received from him a special faculty of dispensing. A faculty of this sort is granted to ordinaries and, in certain circumstances, also to inferior ministers, parish priests and confessors.

Article Two.. On the Power of Dispensing.

The power is to be considered: a. of the supreme pontiff; b. the power of the bishop; c. the power of the parish priest and confessor.

¹ Zitelli, De dispensationibus matrimonialibus (Rome, 1887). Ballerini-Palmieri VI, De dispensationibus, q. 734 ff. Wernz IV, De dispensationibus impedimentorum matrimonialium, n. 806 ff.

² Cn. 80.

³ Cn. 1047.

612. 1. If the contracting parties are of diverse dioceses and a. the impediment is personal to one contracting party, as the impediment of vow, the contracting party must be dispensed by his or her own bishop. Hence if each is bound by an impediment of this sort, each must be dispensed by his or her own bishop. But if b. the impediment is common to each, as consanguinity or affinity, the bishop of either can dispense: for once the impediment has been removed from one side, the other party also becomes free. But it is fitting that the dispensation be sought from the bishop in whose diocese the matrimony is contracted.

2. If the petition for dispensation has been sent to the Holy See, the ordinary cannot use his faculties unless a grave and urgent cause supervenes. In this case dispensation must be granted, but the Holy See must immediately be advised concerning the matter.¹

3. Concerning the faculty of cumulating dispensations, that is, of dispensing in several impediments concurring at the same time in the same case, the following things now have force:²

a. One who has a general faculty of dispensing in some certain impediment (e.g., in relationship) can use the same faculty both in a matrimony to be contracted and in one contracted, even if the same impediment is multiple, unless something else is prescribed in the indult itself.

b. One who has a general faculty of dispensing in several impediments of diverse species can dispense in these, even if several concur, whether diriment or impedient, whether public or occult.

c. If with a public impediment or public impediments in which he can dispense there concurs another impediment in which he cannot dispense, the Holy See must be approached for all. If, however, the impediment or impediments in which he can dispense are discovered after the dispensation of the Holy See has been obtained, he can use his faculty. But if in this case the impediment in which the ordinary can dispense is occult, he can likewise use his faculty.³

d. In granting dispensations, the ordinary must follow the practice of the Holy See concerning the causes of dispensations, that is, he can dispense only from those causes which are judged sufficient by the Holy See for that impediment.

¹ Cn. 1048; Cn. 204.

² Cn. 1049; 1050.

³ Cn. 1050.

621. On the Mode of Granting Dispensation. 1. Dispensations are granted either in commissory form or in gracious form. They are said to be granted in commissory form if to someone there is committed the delegated faculty of executing the dispensation; they are said to be granted in gracious form if the superior himself (the Holy See, the bishop) grants the full dispensation and imposes on another only the mandate of communicating officially with those dispensed concerning the dispensation made.¹

a. In occult impediments, dispensation is customarily granted in commissory form both by the Holy See and by bishops. In public impediments, dispensations are customarily given by the Holy See in commissory form, but by bishops rather in gracious form.

b. For judging the value of the dispensation, attention must be paid to the form in which it is granted: for in order that a dispensation be valid, the causes alleged in the supplicatory petition must be true at the time at which the dispensation is granted. Hence if a dispensation is granted in commissory form, the causes must be true when the commissary executes the dispensation; and if a dispensation is granted in gracious form, the causes must be true when the curia, whether Roman or episcopal, dispenses.²

2. Dispensations are granted either for the external forum or for the internal forum. Between these two kinds of dispensations a twofold difference must be noted: a. dispensations for the external forum are committed by the Holy See to the ordinary for execution; but dispensations for the internal forum are committed to a confessor to be chosen by the petitioners; b. some conditions and clauses are those under which dispensations for the external forum are granted, and others those under which dispensations for the internal forum are granted.

3. In the old law one who was entangled by censure, even occult censure, was incapable of receiving the favor or dispensation of the Holy See. Therefore absolution from censures was premised as a precaution before communication of the pontifical favor. But now even those who are entangled by some censure can validly obtain rescripts of favor, only those being excepted against whom a declaratory or condemnatory sentence has been issued. After a sentence of this sort has been issued, they must first be absolved from censures in order that they can validly receive a rescript of the Holy See, unless mention of the censure is made in the pontifical rescript.³ For this reason, in the faculty of dispensing granted habitually there is also conferred the power of absolving from censures, but only for the effect of obtaining the dispensation.⁴

¹ The Holy See grants matrimonial dispensations in a threefold diverse mode. Sometimes it itself confers the full dispensation, so that no execution is needed (in gracious form). Sometimes it grants the faculty of fully dispensing, in which case the delegate himself completes the whole business of dispensation (the dispensation and the execution). If a dispensation is granted in commissory form, the Holy See confers the dispensation itself, but the execution of the dispensation is committed to the delegate (therefore commissory form). In this case the dispensation does not obtain effect before execution; nevertheless, in executing it, the delegate cannot proceed according to his judgment, but exercises a bare ministry.

² Cn. 41; cf. however Cn. 1054.

³ Cn. 2265, 3.

⁴ Cn. 66, 3.

622. On the Commissary or Executor of Dispensations which are granted for the external forum, from recent law these things must be noted.¹

a. Dispensations committed to the ordinary of the petitioners must be executed by the ordinary who gave the testimonial letters or transmitted the prayers to the Holy See, even if the betrothed, at the time when the dispensation is to be given to execution, have departed into another diocese and are not going to return. Nevertheless the ordinary of the place in which they desire to contract matrimony must be advised.²

b. Dispensations committed to the ordinary can also be executed by his vicar general and, when the see is vacant, by the vicar capitular.

c. The vicar capitular can also execute dispensations remitted to the (deceased) bishop or to his vicar general and not yet mandated to execution. Dispensations remitted to the vicar capitular while the see is vacant can be executed by the successor bishop and his vicar general.

d. The ordinary by whom the dispensation must be executed can also delegate to another the power of executing it, especially to the ordinary in whose diocese the betrothed are actually staying, unless subdelegation has been prohibited.³

¹ S. Office, February 20, 1888, by command of Leo XIII. Cn. 1035.

² Cn. 1035.

³ Cn. 57.

623. On the Mode of Executing Dispensations Granted for the External Forum. 1. The faculty of dispensing from an impediment of matrimony cannot validly be exercised before the rescript of the given faculty has been received; nor does knowledge of the given faculty received from elsewhere suffice, e.g., by telegraph, unless it has been transmitted officially by authority of the Holy See. Execution made before the document has been received, when the document has been received, would have to be repeated.¹

2. The commissary must accurately observe the clauses or conditions of the dispensation which are contained in the rescript: for all have the character of a precept obliging under grave or under light obligation according to the quality of the matter; on some of them even the validity of the dispensation depends.² The chief clauses are:

a. Verification of the prayers before the execution of the dispensation, unless it concerns an impediment of lesser grade. The mode of completing this verification is left per se to the judgment of the ordinary, who usually takes care that it be completed by the parish priest. Verification is chiefly made by examining the witnesses and the petitioners themselves.

b. Removal, if it is present, of scandal, especially through separation of the betrothed, for a time well seen by the ordinary, if it can be done. This clause, which is contained in the rescripts when incest or another delict of the petitioners is brought forward as the cause of dispensation, is to be understood thus, that among the means of repairing scandal separation of the betrothed is to be preferred; but if this cannot be done, another means must be chosen, provided it is apt for the end.³

c. Once these have been duly fulfilled, the dispensation, which is granted not for validity but for liceity,⁴ must be given in writing, with express mention made of the apostolic delegation and of the impediment in which the petitioners are dispensed.⁵

4. If the executor has erred in any way in the execution of the rescript, he can again mandate the dispensation to execution.⁶

¹ S. Penitentiary, January 15, 1894; S. Office, August 14, 1892. Cn. 53.

² S. Penitentiary, April 27, 1886. Cn. 39.

³ S. Penitentiary, April 12, 1889. Usually, for obtaining this end, those about to marry declare before the parish priest and two witnesses that they detest the injury committed and are prepared to fulfill the imposed penance.

⁴ S. Office, June 19, 1875. Cn. 56.

⁵ S. C. de Prop. Fide, January 12, 1869. Cn. 1057.

⁶ Cn. 59, 1.

624. On the Mode of Executing Dispensations Granted for the Internal Forum. If the Penitentiary grants the faculty of dispensing for the internal forum, with regard to the clauses these things must be noted:

1. The letters of dispensation are inscribed: To a discreet man. Therefore any confessor chosen by the petitioner can execute the dispensation, provided he has been approved by the ordinary of the place in which the dispensation is to be granted.

2. If these words are contained in the rescript: we commit to your discretion, insofar as, if it is so, by these words there is imposed on the confessor the obligation (so that the dispensation be licit) of inquiring from the penitent himself or herself whether the things set forth are true. He can simply believe that person's affirmation, unless by extrasacramental knowledge he knows otherwise.

3. If these things are contained in the letters of dispensation: After first hearing the bearer's sacramental confession, absolve from any censures, etc., the dispensation has no force unless, after sacramental confession has been premised, it is given in the act of confession; but sacramental absolution is not required. Hence if the penitent is not disposed for obtaining absolution, nevertheless he or she can be dispensed; and if the absolution would be sacrilegious, nevertheless the dispensation would be valid.¹ But if confession is not expressly prescribed, dispensation for the internal forum can be granted even outside the act of confession.

4. If some penance is imposed in the letters, it must be imposed; but this penance must be distinct from sacramental penance. Sometimes a grave and long penance, a grave and enduring penance, a most grave and perpetual penance is prescribed to be imposed. This penance must be determined by the one who executes the dispensation, with account taken of the condition, age, and sex of the one on whom it must be imposed.

a. A grave and long penance would be a work of penance which is imposed to be performed each week for a year or for six months, or even for three months, e.g., to recite the rosary once or twice each week, to hear Mass once each week, to make the way of the cross each Sunday, to receive the sacraments at least once a month, etc. A grave and enduring penance would be a work of penance of this sort which is enjoined to be performed for three years, or for two, or even for one year. A most grave and perpetual penance would be a work of this sort to be performed until death.

b. Penance in the execution of a matrimonial dispensation must indeed be imposed and accepted, but the dispensation is not rendered invalid by the fact that the imposed penance is not fulfilled by the one dispensed;² nor in that case in which the one dispensed does not even have the intention of fulfilling it.³

5. Since the dispensation must remain occult, these words are contained in the rescript of dispensation: these present letters, under pain of excommunication latae sententiae, are to be destroyed by you immediately after execution. Destruction is to be done immediately, that is, at least within three days, by burning or tearing up the rescript. Nevertheless, by these words the confessor is not prohibited from keeping a copy of the letters for his own instruction, provided all things are omitted from which the person of the penitent can be known.

6. If the impediment affects only one party, as the vow of chastity, it suffices to dispense with one party. But if the impediment is common to each party or introduced by the fault of each, as the impediment of crime, each party must approach a confessor (whether the same one or even a different one) and accept dispensation.

a. If one party chooses another confessor, the rescript must be returned by the first confessor to the penitent, who hands it over to the other party, so that this party can seek dispensation from his or her confessor.⁴

b. The dispensation of each party is not required for removing the impediment, which, since it is indivisible, is removed with regard to each party by one dispensation, but so that a salutary penance may be imposed on each party, since the fault of each is common.⁵

7. Dispensation for the internal forum is granted by word of mouth, and if it is to be granted in confession, after sacramental absolution.

A determinate formula of dispensation is not prescribed; therefore, after sacramental absolution has been granted, the confessor can use these or similar words: Moreover, by apostolic authority committed to me I dispense with you over the impediment (e.g., of affinity), so that, notwithstanding it, you may be able to enter matrimony (if it has already been contracted: enter it again). In the name of the Father, etc.

¹ S. Penitentiary, May 19, 1854.

² S. Penitentiary, September 14, 1891.

³ S. Penitentiary, November 12, 1891.

⁴ S. Penitentiary, November 15, 1748.

⁵ S. Penitentiary, February 7, 1832.

Matrimonial dispensations cannot be granted lawfully even by the Pope without good cause. A cause is motive or final when it is ordinarily deemed sufficient for granting a dispensation; when it only induces the superior to grant a dispensation more readily, it is said to be impulsive. When the petition for a dispensation omits to mention what should be mentioned, it has the defect of subreption; when it alleges what is false, there is obreption. When subreption or obreption occurs in the motive cause, the dispensation from the impediments of greater degree, not from those of minor degree, is invalid at least if the cause alleged was the sole cause, and even if it was not the validity of the dispensation is doubtful. Subreption or obreption in an impulsive cause does not affect the validity of the dispensation. In doubt as to whether a cause falsely alleged for a dispensation was motive or impulsive, the presumption will be in favour of the validity of the dispensation, In dubio standum est pro valore actus. If the motive for granting a dispensation from an impediment of greater degree ceases before the dispensation is executed, the dispensation will lapse; if, however, the motive cause ceases to exist after the dispensation has been executed, though before the marriage has been contracted, the impediment has been removed, and the parties may marry.

Propaganda, May 9, 1877, issued an instruction on matrimonial dispensations, which sets forth and explains the ordinary canonical causes which are accepted as sufficient for granting a dispensation. The same causes, however, are not sufficient for a dispensation from all impediments, and the party interested should put down in his petition all the grounds that he can find for granting the favour he requests. We cannot do better than give here the chief portion of this important document in Fr. Guy’s translation: (1) Smallness of the place, either absolute or relative (as regards the female petitioner alone), seeing that in the place of her birth or even domicile a woman’s relationship is so widely spread that she is unable to meet with anyone to be married to of an equal position with her own, save a relative by blood or by marriage, without leaving her country, which would be a hardship to her.

“‘(2) The advancing age of the woman. If, for instance, she is over twenty-four and has not hitherto met with one of her own position to whom she might be married. But this reason does not hold good in the case of a widow wishing to marry again. U.

“ (3) Deficiency or absence of dowry. If a woman has not actually a dowry large enough to enable her to marry another of her own position, unconnected by blood or marriage, in her own place of abode. And this reason becomes all the more weighty when the woman has no dowry at all and a relation by blood or by marriage is willing to marry her, or even to make a suitable settlement upon her.

(4) Contentions about inheritance that have already arisen or serious or imminent danger of the same. If a woman has on hand an important suit in reference to her inheriting wealth of great amount, and there is no one else to undertake a contention of this kind and carry it on at his own expense save the person who is desirous of marrying her, a dispensation is usually granted, for it is of benefit to the community at large that an end should be put to the contention. A reason of this nature, however, suffices only in cases of remote grades of relationship.

‘““(5) Poverty on the part of a widow with a numerous family which some man promises to support. But at times a widow obtains the benefit of a dispensation owing to her youth and the danger of incontinence. ““

(6) The blessing of peace; and under this head come not only treaties between realms and princes, but the cessation of serious enmities, disturbances, and ill-will between citizens.

(7) Too great, suspicious, or dangerous familiarity, as well as having, almost unavoidably, to dwell together under the same roof, (8) Previous connection with a relation by blood or by marriage, or with any other party under an impediment, and pregnancy, with consequent legitimization of the offspring, in order to provide for the well-being of the offspring and the good name of the mother, who would otherwise remain unmarried, “(g) Disgrace coming upon the woman arising from a suspicion that through over-familiarity with a relative or connection she had been seduced by him, although the suspicion should be false, in a case when unless she marries, a woman seriously defamed would either remain unmarried, or must marry beneath her, or serious loss would ensue. “‘

(10) Revalidating a marriage which has been contracted in good faith, and publicly in the way prescribed by the Council of Trent, because its dissolution could hardly be brought about without grave public scandal and heavy loss, especially on the woman’s part. But if the parties have got married in bad faith, they by no means deserve the favour of a dispensation as the Council of ‘Trent decides.

““(11) Danger of a mixed marriage, or of its being celebrated before a non-Catholic minister. When there is danger of those wishful of being married, though connected in one of the closer degrees, going before a non-Catholic minister for the marriage in defiance of the authority of the Church, by reason of the refusal of a dispensation, there are just grounds for dispensing; for there is imminent danger not only of a most serious scandal to the faithful, but also of apostasy and loss of faith on the part of those so doing and disregarding the impediment to matrimony, especially in countries where heresy flourishes unchecked. The same must be said in the case of a Catholic woman who ventures upon marriage with a non-Catholic man. “

(12) Danger of incestuous concubinage.

“(13) Danger of a civil marriage. From what has been said, it follows that probable danger of those who are petitioning for the dispensation having only a civil marriage, as it is called, if they cannot get the dispensation, is a lawful reason for dispensing. “ (14) The removal of grave scandal.

“(15) Putting a stop to open concubinage.

(16) Merit, that is in the case of one who has by resisting the enemies of the Catholic faith, or by generosity toward the Church, or by his learning, virtue, or some other means, deserved well of religion. ** Such are the more common and strong grounds which are usually brought forward when matrimonial dispensations are to be petitioned for; and theologians and canonists treat of them exhaustively. “ But this instruction now turns to those points which, in addition to the grounds for obtaining the dispensation, must, whether by law, custom, or the practice of the curia, be expressed in the petition, or the dispensation becomes null if the truth be kept back or what is untrue is advanced even in ignorance, ‘These are: (1) The name and surname of the petitioners must both be written down distinctly and clearly, without any abbreviation.

“(2) The diocese of birth or of actual domicile. When petitioners have a domicile out of the diocese of their birth they can ask, if they please, that the dispensation should be sent to the Ordinary of the diocese in which they are actually residing.

“(3) The species (in its most determinate form) of the impediment, whether it is consanguinity or affinity, public morality (honestas); in the case of an impediment by reason of crime, whether it arose from murder of the party’s spouse with the promise of marriage, or from such murder with adultery, or from adultery alone with the promise of marriage.

““(4) The degree of consanguinity or affinity or morality (honestas) arising from a marriage ceremony, and whether it is a simple or mixed degree, the more remote as well as the less, together with the line, and whether it is direct or collateral; likewise, whether the petitioners are related by a double tie of consanguinity, both on the father’s and mother’s side.

““(5) The number of impediments; for instance, is the consanguinity or affinity twofold or manifold; or is there affinity as well as relationship; or any other kind of impediment, diriment or prohibitory? “*

(6) Various circumstances, such as whether the marriage is to be or has been contracted; if contracted, it must be stated whether this was done in good faith at least on one side, or with a knowledge of the impediment; likewise, whether it was after proclamation of banns and in accordance with the prescriptions of the Council of ‘Trent, or whether with the view of more easily obtaining a dispensation; finally, whether it has been consummated, if in bad faith, at least on one side, or with knowledge of the impediment.”’!

The instruction required that mention be made of incest, if this crime had been committed between the parties who asked for the dispensation, but this obligation was abolished by a decree of the Holy Office, June 25, 1885. If a mistake occurs in the names of the petitioners, or of the diocese or parish, it does not invalidate the dispensation, provided that in the judgement of the Ordinary there is no doubt about the truth of the matter (Can. 47).

If a lower degree is put for a higher, the mistake invalidates the dispensation as a rule, otherwise if a higher or equal degree is put for a lower (Can. 1052).

As a rule the Holy See grants dispensations in forma commissoria. When the impediment is occult the commission to dispense the party labouring under the impediment is issued to the confessor. It will therefore be the confessor’s duty to verify the allegations as far as possible and faithfully to observe all the conditions laid down in the papal rescript. The observance of the conditions expressed by such terms as, provided that, if, or the ablative absolute, is necessary for the validity of the dispensation. Besides the conditions, certain things are also prescribed, such as the destruction of the rescript after it has been executed; but these matters do not affect the validity of the dispensation. One of the usual conditions is previous sacramental confession, which requires the hearing of the confession of the party, but not necessarily his absolution. If this clause is not in the rescript, it may be executed outside the confessional. No special form is prescribed for granting the dispensation, which may be done by word of mouth.

Notice of the dispensation if it was given for the internal but non-sacramental forum should be entered in the secret book (Can. 1047).

When the impediment is public the commission is issued to the Ordinary of the parties or to the Ordinary of the place where they live. After the Ordinary has received the rescript he may delegate the verification of the clauses to the parish priest of the parties, and after this has been done he may grant the dispensation according to the terms of the rescript, and on being signed by the Ordinary the dispensation will at once take its effect. The document or a copy of it should be sent to the parish priest, who will inform the parties that the dispensation has been duly granted (cf. Can. 1055, 1046, 1047, 1057).

When the bishop is able to grant the necessary dispensation, he ordinarily does so m forma gratiosa. 'This signifies that on receipt of the petition and having satisfied himself of the truth of the allegations contained in it, he grants the dispensation forthwith by signing a document drawn up in due form, and sends it to the parish priest, who will inform the parties of the terms on which it has been granted.

I. Notion. A cause of dispensing, taken generally, is the reason which moves the superior to dispense. But a canonical cause is one which is recognized by law itself, whether written or customary.

II. Necessity of a cause. A dispensation granted without a just cause, even by the legislator himself, is always illicit; and if it is granted by an inferior, it is also invalid (canon 84, § 1).

III. Division of causes. Causes are divided:

1. Into canonical and non-canonical, according as they are legitimately recognized as true causes, or are not recognized, although perhaps they can impel one to dispense.

2. Into final and impulsive. Final causes are those which suffice of themselves, or which efficaciously move the superior, and without which the dispensation would either not be granted at all, or would be granted in another form or under certain conditions and limitations. Impulsive causes are those which do not suffice of themselves, and without which nevertheless the dispensation would be granted, and indeed in the same form.

3. Into honest and infamous, according as they do not rest, or do rest, upon a delict or at least upon the defamation of the parties about to marry.

IV. The enumeration and exposition of causes are chiefly contained in the Instruction of the Sacred Congregation of Propaganda Fide.¹ The principal ones are:

1. "Narrowness of place, whether absolute or relative, only by reason of the female petitioner, namely when in the place of origin or even of domicile the kinship of the woman has been so propagated that she cannot find another of equal condition whom she may marry, unless he is a blood-relative or affine, while it would be hard for her to leave her homeland."

Moreover:

a) The place of the female petitioner must be narrow. Hence this cause cannot be alleged simply if it exists only on the part of the man. Besides, the female petitioner must be honorable, even if perhaps she is poor or of lower condition.

b) By place is not understood a parish or civil community, but any aggregation of inhabitants, such as a city, suburb, town, village, or hamlet, sufficiently distinct from other neighboring aggregations, so that one place can contain several parishes, and one parish several places. But if the aggregation is distinct from its neighbors in name and in fact, it does not harm the cause that it is a short distance from the others. Otherwise, as if there is question of a suburb, it is required that it be about twenty minutes distant from the city or village.² In addition, in computing distance, account must also be taken of the difficulty of the roads.

c) A place is judged narrow when it does not contain more than 1,500 Catholic inhabitants.³ Namely, infidels, heretics, and schismatics are not counted; but impious and unbelieving Catholics must be counted. But if the place is larger, yet the woman because of higher qualities cannot easily obtain a man of equal condition, narrowness of place is not indeed alleged simply, but that higher quality itself should be expressed, with the approximate number added of men of the same quality living in the place.

d) It suffices that the place of origin or of domicile be narrow. If one differs from the other and each is narrow, likewise if the place of the bridegroom is the same as the place of the bride or at least narrow, this is usefully expressed. It does not suffice if the place of quasi-domicile is narrow and the female petitioner at the same time has a domicile elsewhere. But when she has no domicile elsewhere, or, having a domicile elsewhere, does not live in it, it can suffice if residence in the place of quasi-domicile is notable and sufficiently firm. Therefore this narrowness of the place of quasi-domicile should be expressed in the supplication, with mention made of the domicile.

e) It is required that the woman be unable to find in the place, whether of origin or domicile, another man of equal condition. It is said: 1° in the place, so that the cause remains even if a man can be had from another place; 2° another of equal condition, which is to be understood broadly, concerning state, age, wealth, religious mind, morals, etc.; 3° be unable to find. It suffices that now she is asked by no one of equal condition, even if previously she had been asked. But if only one or another of equal condition offers himself, the Holy See will easily dispense, although the cause does not exist simply.

2. "The over-adult age of the woman, if, namely, having already passed the twenty-fourth year of age, she has thus far not found a man of equal condition whom she can marry. But this cause does not favor a widow who desires to pass to other nuptials."

a) The female petitioner must not be a widow (cf. nevertheless cause 5).

b) It is required that at the time when the dispensation is granted she has completed the twenty-fourth year. If she has only reached it, the cause as such does not subsist; but the Holy See can nevertheless dispense from benignity. If she notably exceeds the required age, this should be expressed so that the dispensation may be granted more easily. Yet some judge that age beyond the fortieth year does not constitute a cause which suffices of itself.

c) That the female petitioner could have found another man of equal condition no longer prevents the cause from being alleged.⁴

3. "Deficiency or insufficiency of dowry; if namely the woman does not actually have so great a dowry that she can marry an outsider of equal condition, who is neither a blood-relative nor an affine, in her own place in which she stays. This cause urges more if the woman exists as altogether undowered, and a blood-relative or affine is prepared to take her as wife or even suitably to endow her fully."

4. "Lawsuits already arisen concerning succession to goods, or grave and imminent danger of the same. If a woman sustains a grave lawsuit concerning succession to goods of great importance, and no one is present who would take a lawsuit of this kind upon himself and prosecute it at his own expense, except him who desires to take her as wife, a dispensation is customarily granted; for it is in the interest of the republic that lawsuits be extinguished. Closely connected with this is another cause, namely, dowry involved in lawsuits, when the woman is destitute of another man by whose help she may be able to recover her goods. But a cause of this kind suffices only for more remote degrees."

5. "The poverty of a widow who is burdened with numerous offspring, and a man promises to support her. But sometimes help is given to a widow by the remedy of dispensation for this cause alone, that she is younger and is in danger of incontinence."

a) If the children are several and younger, it is better to express the number and age so that the dispensation may be obtained more easily. If the widow is sickly, younger, deprived of parents, etc., these things should be opened up for the same reason.

b) When the widow is not burdened with numerous offspring, this cause does not exist. Nevertheless, if she is younger, about thirty years old, or indeed more advanced in age but in danger of incontinence, hope of obtaining a dispensation is not lacking. Nor is it lacking if there is question of a widower, even one having only a single offspring.

6. "The good of peace; under this name come not only treaties between kingdoms and princes, but also the extinction of grave enmities, quarrels, and civil hatreds. This cause is adduced either for extinguishing grave enmities which have arisen between the blood-relatives or affines of the contracting parties and which would be altogether composed by the celebration of the marriage; or when grave enmities have been in force between the blood-relatives or affines of the contracting parties, and, although peace has already been entered between them, nevertheless the celebration of the marriage would conduce greatly to the confirmation of that peace."

a) Under the name of enmities, more serious lawsuits can also be comprehended.

b) Enmities and lawsuits are understood which arose from elsewhere than from the cause of the intended marriage. Nevertheless, the avoidance of enmities or lawsuits foreseen and to be forestalled by marriage can also be alleged.

7. "Excessive, suspect, dangerous familiarity, and also cohabitation under the same roof, which cannot easily be impeded."

These things do not seem to be understood in such a way that dangerous familiarity or cohabitation which is not suspect is not judged to be a cause for seeking a dispensation; all the more because otherwise this seventh cause is not sufficiently distinguished from the ninth cause. The former seems chiefly to rest upon danger of sinning, the latter upon infamy.

8. "Copula previously had with a blood-relative or affine or another person laboring under an impediment, and pregnancy and therefore legitimation of offspring, so that provision may be made for the good of the offspring itself and for the honor of the woman, who otherwise would remain unmarried. This indeed is one of the more urgent causes."

a) These things are commonly understood of public copula or copula soon to be divulged. Nevertheless even occult copula can be alleged, if it is in the woman's interest to marry the man with whom she had copula, for example because of further dangers of incontinence or quarrels between the families of the petitioners to be forestalled.

b) It is said, "who otherwise would remain unmarried"; there can be added: or would not obtain a man of equal condition.

9. "Infamy of the woman arising from suspicion that she, being too familiar with her blood-relative or affine, has been known by the same, although the suspicion is false; namely when, unless marriage is contracted, the woman would remain gravely defamed or unmarried, or would have to marry a man of unequal condition, or grave harms would arise."

10. "Revalidation of a marriage which was contracted in good faith and publicly, with the form observed...; because its dissolution can scarcely take place without public scandal and grave harm, especially to the woman. But if the betrothed entered nuptials in bad faith, they in no way deserve the grace of dispensation, as the Council of Trent disposes."

a) It is said in good faith, namely at least on the part of one or the other.

b) Today in a case of bad faith a dispensation is granted more easily than formerly.

11. "Danger of mixed marriage, or of marriage to be celebrated before a non-Catholic minister. When there is danger that those wishing to contract marriage in some degree, even one of the greater degrees, because of denial of the dispensation, may approach a non-Catholic minister for celebrating the nuptials, with the authority of the Church spurned, a just cause of dispensing is found, because there is present not only the gravest scandal of the faithful, but also fear of perversion and defection from the faith of those acting in this way and despising matrimonial impediments, especially in regions where heresies run riot with impunity." Likewise a dispensation can be granted "to those Catholics who put forward no other motive than mad love, and at the same time it is foreseen that, if the dispensation is denied, they will enter marriage before an infidel judge... The same must be said of the danger that the Catholic party might dare to celebrate marriage with a non-Catholic."

There is question of a particular danger, for example with the character of the parties about to marry considered, not only of a common danger which arises from the fact that somewhere there are many heretics and many mixed marriages have already been contracted. Nevertheless a common danger can be an impulsive cause. It should be indicated whence the existence of the danger is deduced.

12. "Danger of incestuous concubinage. From the above-mentioned Instruction of the year 1822 it is clear that the remedy of dispensation is to be applied lest someone be defiled in concubinage with public scandal and evident danger to eternal salvation."

13. "Danger of civil marriage. From what has been said it follows that the probable danger that those who seek a dispensation, if it is not obtained, are going to celebrate only a civil marriage, as they say, is a legitimate cause of dispensing."

14. "Removal of grave scandals"; under this name are comprehended not only sins of lust, but also other sins, such as hatreds, etc.

15. "Cessation of public concubinage."

16. "Excellence of merits, when someone has deserved very well of religion either by fighting against the enemies of the Catholic faith, or by liberality toward the Church, or by learning, virtue, or in some other way."

a) Great merits are understood, the species of which is to be indicated. To the doubt whether, in defect of other causes, the offering of some alms in favor of the poor and of the church can be held as a legitimate and sufficient cause, the Sacred Congregation of Propaganda Fide, April 1, 1816, responded: Negative. Moreover, the merits of ancestors can also be alleged; indeed, even strangers can bring forward their merits in order to obtain a dispensation for a client.

b) To this can be referred the case in which noble petitioners, or at least petitioners of a very honorable family, being unable or unwilling to allege any canonical cause, simply allege their state and the quality of their family, asking that they be dispensed "from certain reasonable causes moving their mind." When a dispensation of this kind, which because of defect of some expressed cause is called "without cause," is granted to petitioners of this kind, a certain greater pecuniary composition is imposed on them, to be expended by the Supreme Pontiff for pious uses. Nevertheless, a dispensation cannot be sought in this way from the Sacred Penitentiary, nor from the Bishop, although the latter may be equipped with delegated faculties.⁵

The cited Instruction concludes with these words: "These are the more common and more important causes which are customarily adduced for obtaining matrimonial dispensations; concerning them theologians and interpreters of the sacred canons treat copiously." Therefore there are also other causes, of which some are less common, while others are indeed less powerful, but nevertheless are judged impulsive; indeed, taken together they can suffice.

Less common causes are, for example, royal dignity; princely prerogative; conservation of an illustrious family in the same blood; conservation of goods in the same illustrious family. For it is in the interest of the public good that an illustrious family not perish or fall from its state.⁶

Less powerful causes, but nevertheless impulsive, are, for example, conservation of goods in a non-illustrious family; orphanhood of a girl, i.e., a girl deprived of one or both parents; a girl who, by contracting with a blood-relative, could assist poor or sickly parents; a girl who, because of deformity, physical infirmity, illegitimate birth, or the infamy of her family, would scarcely find a husband not joined to her; the condition of a ward, i.e., of a girl whose interest it is to marry a man joined to her; narrowness of place or insufficiency of patrimony with regard to the man; over-adult age with regard to a widow; notable improvement of fortune with regard to a girl otherwise sufficiently endowed; parents of the petitioners burdened, besides the male or female petitioner, with several other children; mixture of goods, or the inconveniences which would follow the division of goods hitherto mixed; contiguous goods of the petitioners; vehement desire of the parents; special equality of condition between the petitioners; nuptials already prepared in ignorance of the impediment.⁷

¹ May 9, 1877 (Collectanea, n. 1470); the praised Instruction enumerates 16 causes; but 28 causes are listed by the catalogue contained in the document inscribed: Formulae Apostolicae Datariae pro matrimoniis iussu Em. Card. Caietani Aloisi Masella reformatae.

² Sacred Dataria to the Sacred Congregation of the Council, March 8, 1884; cf. Sacred Congregation of the Council, July 8, 1876.

³ Sacred Dataria, August 30, 1847; March 8, 1884.

⁴ Sacred Penitentiary, April 5, 1902.

⁵ Vlaming, II, n. 438.

⁶ Pompen, n. 50.

⁷ Vlaming, II, n. 439.

V. Cause required for dispensation. Generally, dispensation is granted more easily in affinity than in consanguinity, more easily in public honesty than in affinity. Moreover:

1. A most grave cause or several grave causes are required by: age required by ecclesiastical law; crime when each party or one or the other is plotting; a degree of consanguinity with which the first is mixed; the first degree of affinity in the transverse line.¹

2. Less grave causes, indeed any of the canonical causes, suffice for impediments of lesser degree, which are: 1° consanguinity in the third degree of the collateral line; 2° affinity in the second degree of the collateral line; 3° public honesty in the second degree; 4° spiritual relationship; 5° crime from adultery with promise of marriage or attempted marriage, even by a merely civil act (canon 1042, § 1).

All impediments not listed here are of greater degree, both diriment and merely impedient; and since no impedient impediment is numbered among impediments of lesser degree, all are of greater degree (cf. canon 1042, § 3).

Several authors indeed judge that the distinction between impediments of greater degree and lesser degree is to be applied only to diriment impediments. But this is little approved, since the whole chapter to which canon 1042 belongs treats of impediments in general.

3. The other impediments require a grave cause.

Note. It should be advised that one who seeks a dispensation set forth all the causes which militate for granting the dispensation.

¹ Vlaming, II, n. 440.

Dispensations can be granted either in gracious form or in commissory form. It is said to be granted in gracious form when the Superior to whom the petition is directed himself grants the dispensation or applies it to the petitioners; hence a concession of this kind is made without an executor, and has effect from the moment when the letters were given (canon 38). A dispensation is said to be granted in commissory form when the Superior commits the execution of the dispensation to another. The person to whom the execution is committed is called the executor; the whole business to be fulfilled by him is called execution; the part of the business which consists in applying the dispensation is called fulmination. Concerning execution, the following hold:

I. The executor of a dispensation performs his office invalidly before he has received the letters and recognized their authenticity and integrity, unless previous knowledge of them has been transmitted to him by the authority of the rescriptor (canon 53). Besides, note:

1. The executor of dispensations can substitute another for himself according to his prudent judgment, unless substitution has been prohibited or the person of the substitute has been predefined (canon 57, § 1).

2. Any dispensations whatever can be committed to execution also by the successor of the executor in dignity or office, unless the industry of the person has been chosen (canon 58).

3. Through the vacancy of the Apostolic See or of the diocese, no dispensation of the same Apostolic See or of the Ordinary perishes (canon 61).

4. The Ordinary of the petitioners, to whom a dispensation over a public impediment has been committed, should execute the dispensation even if the betrothed have departed into another diocese before the execution of the dispensation, and are not going to return, provided the Ordinary of the place in which they desire to contract marriage is advised (canon 1055).

II. If in the rescript of dispensation the mere ministry of execution is committed, the execution of the rescript cannot be denied unless either it is manifestly clear that the rescript is null by a defect of subreption or obreption, or conditions are placed in the rescript which the executor knows have not been fulfilled, or the one who obtained the rescript seems, in the judgment of the executor, so unworthy that the concession of the grace will be an offense to others; and if this last thing happens, the executor, the execution having been interrupted, should immediately make the rescriptor more certain about the matter (canon 54, § 1). But if in the rescript of dispensation the concession of the grace is committed to the executor, it belongs to him, according to his prudent judgment and conscience, to grant or deny the grace (canon 54, § 2).

III. The execution of a dispensation includes verification of the prayers, fulfillment of clauses, and certain other things to be observed.

1. Verification of the prayers. This consists in the executor's investigating whether or not the things contained in the rescript of dispensation agree with the case as it stands at the time of execution (canon 38), and indeed agree insofar as that is required for the validity of the rescript. To what extent this is required for the validity of the rescript is clear from what was said in n. 823. In a word: for validity, the truth of those things suffices which had to be expressed for validity. Besides, note:

a) Verification is required only for liceity; indeed it does not press if, as happens, it has already taken place before, and the executor is certain that the matters have not changed. In the case it suffices to investigate whether the tenor of the rescript corresponds to the things set forth in the petition.¹

b) Verification is instituted: for the external forum, for example by questioning the petitioners and witnesses, consulting the parochial books, etc.; for the internal forum, by questioning the penitent. Verification for the external forum can also be instituted through another.

2. Clauses to be fulfilled; moreover, the principal clauses are:²

a) In rescripts of the Holy Office, if it dispenses in the impediment of disparity of worship or mixed religion, there is added the clause: provided first that regularly, according to the prescription of canon 1061, § 2, sufficient provision has altogether been made for the conditions required by the Church, and the Ordinary himself is morally certain that these conditions will be fulfilled, namely on the part of the non-Catholic spouse concerning removing from the Catholic party the danger of perversion, and on the part of both persons about to marry concerning all offspring of each sex being altogether baptized and educated in the sanctity of the Catholic religion. This clause is essential. The clause concerning the obligation of warning those about to marry that they also cannot approach a non-Catholic minister to give or renew matrimonial consent is now not essential, but only preceptive.

b) In rescripts of the Congregation of the Discipline of the Sacraments:

a) If the things set forth are true. This clause is essential insofar as the truth of those things which had to be expressed for validity is required (n. 823).

b) The canonical prescriptions being observed. This clause is essential or merely preceptive according as the prescriptions themselves are essential or preceptive, according to what has been said and what remains to be said.

c) Provided that no scandal intervenes. The clause does not seem to be essential. Moreover, a continuous occasion should be removed by separation if it is voluntary; if it is necessary, it should be rendered remote.³

d) A salutary penance having been imposed on the petitioners. The clause is merely preceptive.

e) Provided that no doubt underlies the matter that the spouse could be offspring generated by the other of the contracting parties. This clause is essential, and in a dispensation in the impediment of public honesty is understood if it is not expressed (cf. canon 1076, § 3).⁴

c) In rescripts of the Sacred Penitentiary:

a) His or her confession having first been heard, or only in sacramental confession. This clause imports that, for validity, it is required that sacramental confession be instituted and that the dispensation be fulminated in confession. Nevertheless the dispensation is not invalid because the confession is sacrilegious or invalid; nor is absolution required⁵ (St. Alphonsus, 1143).

b) Provided that the impediment is occult. The clause is essential.

c) Provided that letters of dispensation over the public impediment have been obtained and the nullity coming from the foregoing remains occult, namely until the nuptials. The clause is essential and is added when a public impediment concurs with an occult one.

d) A grave, or long, or perpetual salutary penance having been enjoined. The clause is merely preceptive; moreover, a penance distinct from the sacramental penance is understood. A long penance is, for example, a penance of one year; a perpetual penance regards the whole life (St. Alphonsus VI, 1143).

"In predefining the quality, gravity, duration, etc., of the penance, let him exceed neither the limits of severity nor those of humanity, and let him take account of the condition, age, infirmity, office, sex, etc., of those on whom the penalty is to be imposed."⁶ If the penitent does not accept the penance, commutation should be obtained; and if this is foreseen, it should be manifested in the petition.

e) Other things having been enjoined which must be enjoined by law, that is, according to the principles of moral theology, for example scandal to be removed, restitution to be made, etc. This clause is likewise merely preceptive.

3. And certain other things to be observed. a) Previous absolution from censures is not required for the validity of the dispensation, unless someone has been censured by a declaratory or condemnatory sentence brought against him (canon 36, § 2); nor is it clear that it is required for liceity. If a sentence has intervened, the censured person cannot validly receive a dispensation unless mention of the censure is made in the pontifical rescript (canon 2265, § 2; 2275, 3°; 2283). Besides, in the case in which absolution from censure has place, the customary form of absolving from censures and sins suffices, that is, the one which is used in sacramental judgment. If absolution from sins cannot be given, for instance because the penitent is indisposed, the absolution from sins being omitted, only absolution from censures is first given.

Note. In the faculty of dispensing is also included the power of absolving from ecclesiastical penalties if any perchance stand in the way, but only for the effect of obtaining the dispensation (canon 66, § 3; n. 809).

b) The executor must accomplish the fulmination itself for the external forum in writing (canon 56); likewise it is better that he accomplish it in this way if the fulmination is made in the non-sacramental internal forum. In the sacramental internal forum it is to be made by living voice and to a person present. It is made to one person only if the impediment affects only one party, for example a vow; if the impediment is common to both parties, it is to be made to both parties, whether the same or a different confessor is chosen by the petitioners.⁷ If a different confessor is chosen, "the prior confessor, after the dispensation has been granted to one according to the form of the letters, must hand over the letters of the Sacred Penitentiary, closed, to the penitent, so that through him they may be handed over to the other party, who likewise should have the same letters executed with him or her through another confessor, whose duty it will be in a case of this kind, when the business has been completed, to tear up the letters."⁸ Nevertheless, even in this hypothesis the fulmination upon the other party is required only for liceity, and for a grave cause, for instance because the other party refuses to confess, it can be omitted.

A determinate form by which the fulmination is made is not required. If, however, someone grants a dispensation by power delegated from the Apostolic See, he should make express mention of the pontifical indult (canon 1057).

c) After the dispensation has been fulminated, if mention is made in the document concerning legitimation, legitimation of the offspring follows; this can be made in any form. Fittingly one of these forms, taken from Benedict XIV, is used for fulmination and legitimation.⁹

For a marriage to be contracted: After the customary form of absolution, the confessor can proceed thus: "And besides, by Apostolic Authority, or by the authority of the Most Reverend Bishop N., specially delegated to me, I dispense with you over the impediment, which he here expresses, for example, of the second degree of affinity, so that, notwithstanding the aforesaid impediment, you may licitly be able to contract marriage publicly with the woman whom you intend to marry, the ecclesiastical form having been observed, to consummate it, and to remain in it; and by the same Apostolic Authority I declare the offspring already received, if there is any, and to be received from this union legitimate. In the name of the Father and of the Son and of the Holy Spirit. Amen."

For convalidating a marriage already contracted (n. 829 sq.): "Besides, by Apostolic Authority, or by the authority of the Most Reverend Bishop N., specially delegated to me, I dispense with you over the impediment... by which, being bound, you contracted marriage nullly, so that, notwithstanding the aforesaid impediment, you may licitly be able to contract marriage anew with your putative spouse, consent being renewed, to consummate it, and to remain in it; and I declare the offspring already received and to be received from this union legitimate. In the name," etc.

For a marriage to be healed in the root (n. 833): "Besides, by Apostolic Authority, etc.... I heal in its root the marriage contracted by you with N., and I declare the offspring already received and to be received from this union legitimate. In the name," etc.

d) After the fulmination has been completed, these things are to be observed:

a) Rescripts of dispensations granted for the external forum should be deposited in the diocesan archive (cf. canon 375, § 1), and the executory letters in the parochial archive.

b) Unless the rescript of the Sacred Penitentiary provides otherwise, a dispensation granted in the non-sacramental internal forum over an occult impediment should be noted in the book to be carefully kept in the secret archive of the Curia, of which canon 379 treats; nor is another dispensation for the external forum necessary, even if afterward the occult impediment becomes public; but it is necessary if the dispensation had been granted only in the sacramental internal forum (canon 1047).

c) Rescripts by which a dispensation has been granted for the sacramental internal forum are to be torn up or burned, and this according to the rescripts of the Sacred Penitentiary "under latae sententiae excommunication." The obligation must be fulfilled at least within three days after the execution of the dispensation (St. Alphonsus VI, 1143). Nevertheless, the confessor is not prohibited from retaining a transcribed text; in that case he should omit the day and year.

¹ Cf. Sacred Penitentiary, April 27, 1886; Holy Office, August 28, 1895.

² Cf. Aertnys-Damen II, n. 802 sq.

³ Sacred Penitentiary, April 27, 1886.

⁴ Cf. Pontifical Commission, June 2-3, 1918 (A.A.S. 1918, p. 346).

⁵ Sacred Congregation of Propaganda Fide, January 6, 1797 (collection, n. 633); December 18, 1878; Sacred Penitentiary, May 19, 1834; January 4, 1839.

⁶ Sacred Penitentiary, April 8, 1890.

⁷ Sacred Penitentiary, November 15, 1778.

⁸ Response of the Sacred Penitentiary cited.

⁹ Benedict XIV, Institutiones ecclesiasticae 87, n. 81.

Whether dispensations are valid as to affinity from licit or matrimonial copula, in which no mention has been made of illicit or anti-matrimonial copula? Resp. "The dispensations in the cases set forth are valid." S. Poenit. 7 June 1842. And this response was declared general by Letters of the same Penitentiary, 10 Dec. 1874.

"Since dispensation is a relaxation of common law, made with knowledge of the cause by him who has power, it is evident to all that dispensations from matrimonial impediments are not to be indulged unless a legitimate and grave cause intervenes. Indeed everyone easily understands that a cause so much the graver is required as the impediment which is opposed to celebrating the nuptials is graver. But not rarely suppliant letters reach the Holy See for obtaining some dispensation of this sort which are supported by no canonical reason. It also sometimes happens that in supplications of this sort those things are omitted which must necessarily be expressed, lest the dispensation labor under the defect of nullity. Therefore it seemed opportune in the present Instruction briefly to touch upon those principal causes which, according to canonical sanctions and the prudent judgment of ecclesiastical provision, have been accustomed to be held sufficient for obtaining matrimonial dispensations; then to indicate those things which must be expressed in asking for the dispensation itself.

And, to begin from the causes of dispensations, it will first be worthwhile to observe that sometimes one cause taken separately is insufficient, but joined to another is judged sufficient; for many things help which individually do not profit. Arg. l. 5, C. De probat. But causes of this sort are the following:

1. Narrowness of place, whether absolute or relative, only by reason of the Oratrix, namely when in the place of origin, or even of domicile, the kinship of the woman has been so propagated that she cannot find another of equal condition to whom she may marry except a blood-relative or affine; but to leave her fatherland is hard for her.

2. Over-adult age of the woman, namely if, having already passed the 24th year of age, she has up to now not found a man of equal condition to whom she can marry. But this cause does not support a widow who desires to fly to other nuptials.

3. Deficiency or incompetence of dowry, namely if the woman does not actually have so great a dowry that she can marry a stranger of equal condition, who is neither blood-relative nor affine, in her own place in which she lives. This cause urges more if the woman exists wholly undowered, and a blood-relative or affine is prepared to take her as wife, or even conveniently to endow her entirely.

4. Lawsuits over succession of goods already arisen, or grave or imminent danger of them. If the woman sustains a grave lawsuit over succession of goods of great moment, and there is no other who will take a lawsuit of this sort upon himself and prosecute it at his own expense except the one who desires to take her as wife, dispensation is customarily conceded; for it concerns the Commonwealth that lawsuits be extinguished. Another cause comes very close to this, namely, a Dowry involved in lawsuits, when the woman is destitute of another man by whose help she could recover her goods. But a cause of this sort suffices only for more remote degrees.

5. Poverty of a widow who is burdened by numerous offspring, and a man promises to support her. But sometimes a widow is assisted by the remedy of dispensation for this cause alone, that she is younger and is situated in danger of incontinence.

6. The good of peace, under which name come not only treaties among Kingdoms and Princes, but also the extinction of grave enmities, quarrels, and civil hatreds. This cause is adduced either for extinguishing grave enmities which have arisen among the blood-relatives or affines of the contracting parties, and which would be altogether settled by the celebration of marriage; or when grave enmities have flourished among the blood-relatives and affines of the contracting parties, and, although peace has already been entered among them, nevertheless the celebration of the marriage would greatly conduce to the confirmation of that peace.

7. Excessive, suspect, dangerous familiarity, and also cohabitation under the same roof, which cannot easily be impeded.

8. Copula previously had with a blood-relative, or affine, or another person laboring under an impediment, and Pregnancy and therefore legitimation of offspring, namely that provision may be made for the good of the offspring itself and the honor of the woman, who otherwise would remain unmarried. This indeed is one of the more urgent causes, on account of which dispensation is customarily given even to commoners, provided that the copula was not perpetrated under the hope of an easier dispensation: which circumstance would have to be expressed in the supplication.

9. Infamy of the woman arisen from suspicion that she, being too familiar with her blood-relative or affine, was known by him, although the suspicion is false, namely when, unless marriage is contracted, the woman would remain gravely defamed or unmarried, or would have to marry a man of unequal condition, or grave damages would arise.

10. Revalidation of marriage which in good faith and publicly, with the Tridentine form observed, was contracted: because its dissolution can scarcely happen without public scandal and grave damage, especially of the woman (chap. 7, De consanguin.). But if the spouses entered the nuptials in bad faith, they by no means merit the grace of dispensation, the Council of Trent so disposing, sess. 24, ch. 5, De reform. matrim.

11. Danger of mixed marriage, or of celebrating before a non-Catholic Minister. When there is danger that those wishing to contract marriage in some degree even of the greater degrees, from the denial of dispensation, will approach a non-Catholic Minister for celebrating the nuptials, with the authority of the Church spurned, a just cause of dispensing is found, because there is present not only most grave scandal of the faithful, but also fear of perversion and defection from the faith of those so acting and contemning the impediments of marriage, especially in regions where heresies rage with impunity. This Sacred Congregation taught this in the Instruction given on 17 Apr. 1820 to the Archbishop of Quebec. Likewise when the Apostolic Vicar of Bosnia had asked whether he could grant dispensation to those Catholics who allege no other motive than mad love, and at the same time it is foreseen that, dispensation being denied, they are going to enter marriage before an infidel Judge, the S. C. of the Holy Office, on Wednesday, 14 Aug. 1822, decreed: Response is to be made to the Orator that in the case set forth he should use the faculties committed to him in form II, as he shall have judged expedient in the Lord. The same must be said concerning the danger that the Catholic party may dare to celebrate marriage with a non-Catholic.

12. Danger of incestuous concubinage. From the above-mentioned Instruction of the year 1822 it is clear that the remedy of dispensation must be applied lest someone grow filthy in concubinage with public scandal and evident danger of eternal salvation.

13. Danger of civil marriage. From the things said it follows that a probable danger that those who seek dispensation, not obtaining it, will celebrate only civil marriage, as they say, is a legitimate cause of dispensing.

14. Removal of grave scandals.

15. Cessation of public concubinage.

16. Excellence of merits, when someone has deserved very well of religion, either by fighting against the enemies of the Catholic faith, or by liberality toward the Church, or by doctrine, virtue, or in another way.

These are the more common and stronger causes which are customarily adduced for obtaining matrimonial dispensations; concerning these Theologians and interpreters of the sacred Canons treat copiously. Among the others to be consulted are Pyrrhus Corradus, Praxis dispensationum apostolicarum, books 7 and 8, and Vincentius De Iustis, De dispensationibus matrimonialibus, book III.

But now the Instruction turns itself to those things which, besides the causes, in suppliant letters for obtaining a dispensation must be expressed by law or custom, or the style of the Curia, so that if even ignorantly the truth is kept silent, or falsehood is narrated, the dispensation is rendered null. These are:

1. The Name and Surname of the Orators, each to be written distinctly and clearly, and without any abbreviation of letters.

2. The Diocese of origin or actual domicile. When the Orators have domicile outside the Diocese of origin, they can, if they wish, ask that the dispensation be sent to the Ordinary of the Diocese in which they now live.

3. The species, even the lowest, of the impediment: whether it is consanguinity, or affinity arisen from licit or illicit copula; public honesty deriving origin from betrothals or from ratified marriage; in the impediment of crime, whether it came from killing of the spouse with promise of marriage, or from killing of the spouse with adultery, or from adultery alone with promise of marriage; in spiritual relationship, whether it is between the one lifting and the one lifted, or between the one lifting and the parent of the one lifted.

4. The degree of consanguinity, or affinity, or honesty from ratified marriage, and whether it is simple or mixed, not only the more remote but also the nearer; and also the line, whether it is direct or transverse; likewise whether the Orators are joined by a double bond of consanguinity, both on the side of the father and on the side of the mother.

5. The number of impediments, for example, if there is double or multiple consanguinity or affinity, or if besides kinship there is also affinity, or any other impediment whatsoever, whether diriment or impeding.

6. Various circumstances, namely whether the marriage is to be contracted or has been contracted; if already contracted, it must be opened whether in good faith, at least on the part of one, or with knowledge of the impediment; likewise, whether with denunciations premised and according to the Tridentine form; or whether under the hope of more easily obtaining dispensation; finally, whether it has been consummated; if in bad faith, at least of one party, or with knowledge of the impediment.

7. Incestuous copula, etc. Cf. N. 867.

These things must be kept before the eyes not only by those who recur to the Holy See for obtaining some matrimonial dispensation, but also by those who, from Pontifical delegation, can dispense by themselves, so that they may duly use, as is fitting, the faculties which they possess." Instr. S. C. de P. F. 9 May 1877.

When is narrowness of place such that it can be adduced as a legitimate cause for obtaining matrimonial dispensation?

Resp. A norm is handed down by Pius IX through the circular letter of the Most Eminent Pro-Datary Cardinal Spinola sent to the Archbishops on 30 Aug. 1847. Moreover in it those places are declared narrow in which the number of hearths does not exceed three hundred, or the inhabitants are not beyond one thousand five hundred. S. C. C. on 16 Dec. 1876 gave this response: "Narrowness of place is not to be taken from the number of hearths of each parish, but from the number of hearths of each place or even of several places, if they are not distant from each other beyond a mile." But the Apostolic Datary has these things: "Narrowness of place is verified when its households do not exceed the number three hundred; nor is it an obstacle that the narrow place exists a little distant from another, provided that those two places are distinct and diverse among themselves and have their own name. But some distance is required in Suburbs, which, although they constitute part of the city, nevertheless Narrowness is admitted in them when they are distant from the city by a mile or a little less. Thus think Pyrrhus Corrado in Praxis dispens. apost., l. 7, ch. 5, and De Iustis, de dispens. matrim., l. 3, ch. 2. Moreover the practice of this Apostolic Datary conforms exactly to doctrine of this sort." Cf. Acta S. Sed. Vol. 9, p. 631; Vol. 16, p. 544.

"The holy Church of God has always pursued the unspeakable crime of incest with special hatred, and the Supreme Roman Pontiffs established that those who did not blush to defile themselves with it, if they fled to the Apostolic See for the sake of seeking dispensation over impediments diriment of marriage, unless mention of the admitted crime had been made in their prayers, these prayers would be held infected by the defect of obreption and subreption, and therefore the dispensation would be invalid; and this was provided for that most holy cause, that the Christian faithful be kept away from this most grave crime.

The mind of this Holy See is witnessed both by other documents and by the decree which most recently the supreme council of the holy Roman and universal Inquisition, with the Roman Pontiff himself approving, issued on Wednesday, 1 August 1866, which is of this sort: 'that dispensations are subreptitious and nowhere and in no way valid, whether they are conceded directly by the Apostolic See or from pontifical delegation over whatsoever prohibited degrees of consanguinity, affinity, spiritual relationship, and also public honesty, if the spouses before the execution of the same dispensations, whether before or after their impetration, committed the guilt of incest; and, whether questioned or even not questioned, maliciously or even ignorantly kept silent the incestuous copula entered between them, whether it is publicly known or even occult, or kept silent the counsel and intention by which they entered the same copula so that they might more easily obtain dispensation.' The Sacred Penitentiary, insisting on the footsteps of the supreme Inquisition, established the same thing on 20 July 1879.

But since very many sacred Prelates, either individually and separately or jointly, reported to the Holy See that very great inconveniences arise from that cause when one proceeds to the execution of matrimonial dispensations, and especially in these miserable times what had been wisely introduced for the salvation of the faithful not rarely tends to their ruin, Our Most Holy Lord Leo XIII, Pope by divine providence, moved by their petitions, the matter having long and maturely been weighed, and adhering to the vote of the Most Eminent Cardinals of the Holy Roman Church, Inquisitors General along with me in the universal Christian republic, ordered these letters to be given to all local Ordinaries, by which it might be made known to them that the decree reported above of the holy Roman and universal Inquisition and of the Sacred Penitentiary, and whatever else in the same sense shall have been declared, established, or introduced by the style of the Curia, is revoked and abrogated by him and decreed to be of no force hereafter; and at the same time it is established and declared that matrimonial dispensations to be conceded hereafter, even if incestuous copula or the counsel and intention of more easily obtaining dispensation through it shall have been kept silent, will be valid: all things whatsoever to the contrary, even those worthy of special mention, by no means standing in the way.

Yet while, on account of most grave moments of reasons, the Most Holy Father judges that there must benignly be a receding from the former rigor concerning this matter, His mind is that nothing be taken away from the minds of the faithful concerning the horror which the crime of incest must inject; indeed he wishes curators of souls and others to whom the care of fostering honesty of morals among the Christian faithful has been entrusted to be excited with the greatest zeal, so that, prudently indeed, as the nature of the matter demands, yet efficaciously, they labor in pursuing this crime and deterring the faithful from it, with the penalties to which they become subject set forth." Circular Letter of the Holy Office, 25 June 1885.

"1. The Official must always have exact information about the business of which there is question, received through a person worthy of faith. It is enough that the Official have moral conviction, and it makes no difference if he acquired it in one or another way. 2. If the Official has true and undoubted confidence, which arises from moral conviction, concerning the person of the Parish Priest, the report of this Parish Priest suffices for establishing the truth and certainty of the prayers. 3. When the Official has undoubted faith concerning the Parish Priest and the integrity of his soul, then the report and testimony of that man, and also the examination performed by him and diligently set forth at the episcopal Curia, is always sufficient. 4. An oath is furnished by the person to be examined only in that case in which the same oath is prescribed by the Holy See through Apostolic matrimonial Letters; otherwise not: for what the law wished, it expressed; what it did not express, it did not wish. 5. When it is established concerning the faith and integrity of the parish priest, his testimony concerning poverty suffices, unless it is otherwise established; for in this case the Official will diligently seek information concerning poverty. 6. An oath is to be furnished only in that case in which the Holy See prescribed it in the Apostolic Letters of matrimonial dispensations." The mandatary of the Bishop of Mainz, by mandate of the sacred Apostolic Datary, with commonly retained practice as guide, 10 Oct. 1867. Cf. Franc. Sentis, Clem. Pap. VIII. Decretal., Freiburg im Breisgau 1870, pp. 4-5. You have a brief and ordered exposition of Impediments of Matrimony in the Synopsis of G. Allegre, 2nd ed.

Whether dispensations concerning affinity from licit or matrimonial intercourse in which no mention was made of illicit or anti-matrimonial intercourse are valid.—Response. “The dispensations in the cases set forth are valid.” Sacred Penitentiary, 7 June 1842. And this response was declared general by Letters of the same Penitentiary, 10 December 1874. Cf. C. 1236.

“Since a dispensation is a relaxation of the common law, with knowledge of the cause, made by one who has power, it is established for all that dispensations from matrimonial impediments are not to be granted unless a legitimate and grave cause intervenes. Indeed, everyone easily understands that a cause is required to be so much graver as the impediment opposed to the celebration of the nuptials is graver. But not rarely do supplicatory letters reach the Holy See for obtaining some dispensation of this kind which are supported by no canonical reason. It also sometimes happens that in supplications of this kind those things are omitted which must necessarily be expressed lest the dispensation labor under the defect of nullity. Therefore, it seemed opportune in the present Instruction to touch briefly upon those principal causes which, according to canonical enactments and the prudent judgment of ecclesiastical provision, are customarily regarded as sufficient for obtaining matrimonial dispensations, and then to indicate those things which must be expressed in petitioning for the dispensation itself.

“And, to begin with the causes of dispensations, it will first be worthwhile to observe that sometimes one cause taken separately is insufficient, but, joined to another, is judged sufficient; for things which do not avail singly assist when they are many (argument from law 5, Code, On Proofs). Causes of this kind are the following:

“1. Narrowness of the place, whether absolute or relative—with respect only to the female petitioner—namely, when, in the place of origin or even of domicile, the kindred of the woman is so propagated that she cannot find another of equal condition whom she may marry unless he is a blood relative or relative by affinity, while it would be hard for her to leave her homeland.

“2. The over-advanced age of the woman, namely, if, having already passed the twenty-fourth year of age, she has hitherto not found a man of equal condition whom she can marry. But this cause does not favor a widow who desires to pass to other nuptials.

“3. The lack or insufficiency of a dowry, namely, if the woman does not actually possess so great a dowry that she can marry, in the place where she dwells, a stranger of equal condition who is neither a blood relative nor related by affinity. This cause is more urgent if the woman is altogether without a dowry and a blood relative or relative by affinity is prepared to take her as wife or even suitably to endow her wholly.

“4. Lawsuits concerning the succession of goods already arisen, or a grave or imminent danger of them. If a woman sustains a grave lawsuit concerning the succession of goods of great importance, and no other person is present who would undertake a lawsuit of this kind and pursue it at his own expense besides the one who wishes to take her as wife, a dispensation is customarily granted; for it concerns the commonwealth that lawsuits be extinguished. Another cause closely approaches this, namely, a dowry involved in litigation, when the woman is destitute of another man by whose aid she can recover her goods. But a cause of this kind suffices only for more remote degrees.

“5. The poverty of a widow who is burdened with numerous offspring and whom a man promises to support. But sometimes a widow is aided by the remedy of a dispensation for this reason alone: that she is younger and is situated in danger of incontinence.

“6. The good of peace, under which name come not only treaties between kingdoms and princes but also the extinction of grave enmities, quarrels, and civil hatreds. This cause is adduced either to extinguish grave enmities which have arisen between the blood relatives or relatives by affinity of the contracting parties and which would be altogether settled by the celebration of the Marriage; or when grave enmities have flourished between the blood relatives and relatives by affinity of the contracting parties and, although peace has already been entered between them, nevertheless the celebration of the Marriage would conduce very greatly to the confirmation of that peace.

“7. Excessive, suspect, and dangerous familiarity, and likewise cohabitation under the same roof, which cannot easily be prevented.

“8. Prior intercourse with a blood relative, a relative by affinity, or another person laboring under an impediment, and pregnancy and therefore the legitimation of offspring, namely, so that provision may be made for the good of the offspring itself and for the honor of the woman, who otherwise would remain unmarried. This is certainly one of the more urgent causes on account of which a dispensation is customarily given even to common people, provided that the intercourse was not perpetrated in the hope of an easier dispensation; this circumstance would have to be expressed in the supplication.

“9. The infamy of the woman arising from suspicion that she, being excessively familiar with her blood relative or relative by affinity, was carnally known by him, although the suspicion is false, when, namely, unless the Marriage is contracted, the woman, gravely defamed, would either remain unmarried, have to marry a man of unequal condition, or grave injuries would arise.

“10. The revalidation of a Marriage which was contracted in good faith and publicly, with the Tridentine form observed; because its dissolution can scarcely occur without public scandal and grave harm, especially to the woman (chapter 7, On Consanguinity). But if the betrothed parties entered the nuptials in bad faith, they by no means merit the grace of a dispensation, as the Council of Trent disposes, session 24, chapter 5, On the Reformation of Matrimony.

“11. The danger of a mixed Marriage or of one to be celebrated before a non-Catholic minister. When there is danger that those wishing to contract Marriage even in one of the greater degrees, upon denial of the dispensation, will approach a non-Catholic minister to celebrate the nuptials, in contempt of the authority of the Church, a just cause for dispensing is found, because there is present not only the most grave scandal of the faithful but also fear of the perversion and defection from the faith of those acting in this manner and despising the impediments of Matrimony, especially in regions where heresies rage with impunity. This Sacred Congregation taught this in the Instruction given to the Archbishop of Quebec on 17 April 1820. Likewise, when the Vicar Apostolic of Bosnia asked whether he could grant a dispensation to those Catholics who allege no other motive than insane love, and at the same time it is foreseen that, if the dispensation is denied, they will enter a union before an unbelieving judge, the Sacred Congregation of the Holy Office on Wednesday, 14 August 1822, decreed: ‘Response is to be made to the petitioner that in the case set forth he may use the faculties committed to him in Formula II according as he shall judge expedient in the Lord.’ The same is to be said concerning the danger that a Catholic party may dare to celebrate Marriage with a non-Catholic.

“12. The danger of incestuous concubinage. From the Instruction of the year 1822 mentioned above, it is clear that the remedy of a dispensation is to be employed lest anyone grow filthy in concubinage with public scandal and evident danger to eternal salvation.

“13. The danger of civil Marriage. From what has been said, it follows that the probable danger that those who seek a dispensation, if they do not obtain it, will celebrate only a civil Marriage, as they say, is a legitimate cause for dispensing.

“14. The removal of grave scandals.

“15. The cessation of public concubinage.

“16. Excellence of merits, when someone has deserved exceedingly well of religion, whether by fighting against the enemies of the Catholic faith, by liberality toward the Church, by learning, virtue, or in another manner.

“These are the more common and principal causes which are customarily adduced for obtaining matrimonial dispensations. Theologians and interpreters of the sacred canons treat them copiously. Among others, Pyrrhus Corradus, Practice of Apostolic Dispensations, books 7 and 8, and Vincent De Iustis, On Matrimonial Dispensations, book 3, are to be consulted.

“But now the Instruction turns to those things which, besides the causes, must be expressed by law, custom, or the style of the Curia in supplicatory letters for obtaining a dispensation, so that if the truth is concealed even through ignorance, or a falsehood is narrated, the dispensation is rendered null. These are:

“1. The first and last names of the petitioners, each to be written distinctly and clearly and without any abbreviation of letters.

“2. The diocese of origin or of actual domicile. When the petitioners have domicile outside the diocese of origin, they can, if they wish, request that the dispensation be sent to the Ordinary of the diocese in which they now dwell.

“3. Even the lowest species of the impediment: whether it is consanguinity, or affinity arising from licit or illicit intercourse; public propriety deriving its origin from betrothals or from a ratified Marriage; in the impediment of crime, whether it arose from the killing of a spouse with a promise of Marriage, or from the killing of a spouse with adultery, or from adultery alone with a promise of Marriage; in spiritual kinship, whether it is between the sponsor and the person sponsored, or between the sponsor and a parent of the person sponsored.

“4. The degree of consanguinity, affinity, or propriety from a ratified Marriage, and whether it is simple or mixed, not only the more remote but also the nearer degree; and likewise the line, whether direct or collateral; likewise, whether the petitioners are joined by a double bond of consanguinity, both on the father’s side and on the mother’s side.

“5. The number of impediments; for example, if there is double or multiple consanguinity or affinity, or if, besides kinship, there is also affinity or any other impediment, whether invalidating or prohibitive.

“6. The various circumstances: namely, whether the Marriage is to be contracted or has been contracted; if already contracted, it must be disclosed whether in good faith, at least on the part of one, or with knowledge of the impediment; likewise, whether after the banns had first been made and according to the Tridentine form, or whether in the hope of obtaining a dispensation more easily; finally, whether it has been consummated; if in bad faith, at least on the part of one, or with knowledge of the impediment.

“7. Incestuous intercourse, etc. Cf. no. 1038.

These things must be kept before their eyes not only by those who have recourse to the Holy See in order to obtain some matrimonial dispensation, but also by those who are themselves able to dispense by virtue of a Pontifical delegation, so that they may duly use, as is proper, the faculties with which they are endowed." Instruction of the Sacred Congregation for the Propagation of the Faith, 9 May 1877.

When is the narrowness of a place such that it may be adduced as a legitimate cause for obtaining a matrimonial dispensation? - Response. The norm is given by Pius IX through a circular letter of His Eminence Cardinal Spinola, Pro-Datary, sent to the archbishops on 30 August 1847. In it, moreover, those places are declared narrow in which the number of households does not exceed three hundred, or the inhabitants are not more than one thousand five hundred. - The Sacred Congregation of the Council, on 16 December 1876, gave this response: "The narrowness of a place is not to be derived from the number of households of each parish, but from the number of households of each place, or even of several places, if they are not more than one mile distant from one another." The Apostolic Datary, however, has this: "The narrowness of a place is verified when its households do not exceed the number three hundred; nor does it prevent this that the narrow place is situated at a small distance from another, provided that those two places are distinct and different from one another and have their own designation. Some distance, however, is required in suburbs which, although they constitute part of a city, are nevertheless admitted as narrow when they are distant from the city by a mile or a little less. Thus think Pyrrhus Corrado, Praxis dispensationum apostolicarum, book 7, chapter 5, and De Justis, De Dispensationibus matrimonialibus, book 3, chapter 2. The practice of this Apostolic Datary conforms exactly to a doctrine of this kind." Cf. A. S. S., vol. 9, p. 631; vol. 16, p. 544; C. 1481.

It often happens that Apostolic matrimonial dispensations are obtained for the cause (whether alone or with others) of the over-advanced age of the female petitioner, expressed simply thus, or sometimes thus: the age of the female petitioner is 25 years, or 30, or otherwise, but more than 24. Since, however, Authors are of the opinion that a cause of this kind is to be interpreted as meaning that up to that age the woman had not found a man of equal condition whom she could marry, this question is asked by this Most Reverend Episcopal Curia of Tropea: Whether, in verifying the aforesaid cause, it is also necessary to inquire into and prove that the woman of over-advanced age had not, up to that age, found a man of equal condition whom she could marry; and whether this is required for the validity of the dispensation?

Response. "It is sufficient that the over-advanced age be certainly established." Sacred Penitentiary, 5 April 1902.

"Under date of 30 March 1897, John B.... and Rosalia I.... N...., of the diocese of N...., received from the Apostolic Datary a rescript of dispensation concerning degrees of consanguinity in the second degree in the equal line from one stock, and in a double fourth degree arising from a third stock. Thus the rescript read, whereas in fact the dispensation had been requested concerning degrees of consanguinity in the second degree from one stock, the fourth from another, and finally likewise the fourth from a third stock. Since time was pressing, the Ordinary of N.... executed the rescript. 1. Whether he validly and licitly executed the rescript?

"On 1 February 1895, when a certain Ordinary had declared himself in the petition to be the Ordinary of origin, whereas in fact he was the Ordinary of domicile, the Sacred Penitentiary responded to his inquiry that the dispensation had been validly and licitly granted, but that the error was to be corrected. Hence 2. Whether the Ordinary of N.... himself must also correct the error of the rescript in the present case?

"Response. Let him rest content after making the correction." Sacred Penitentiary, 2 June 1897.

"I recently wrote to the Sacred Penitentiary that Charles D...., twenty-six years old, and Julia Louisa M...., twenty-three years and six months old, of the diocese of N...., prostrate at the feet of Your Holiness and desiring to contract a lawful Marriage, humbly implored a dispensation from the impediment of consanguinity in the second degree of the collateral line. I alleged as causes the nearly advanced age of the female petitioner (namely, twenty-three years and six months) and her condition as bereft of both parents.

"Now the Sacred Penitentiary, under date of 19 April of the current year, granted the Ordinary of N.... the faculty to dispense for the following reasons: the female petitioner's age of twenty-four years and her condition as an orphan.

"Hence I humbly ask whether I may nevertheless dispense the petitioners, since the female petitioner has not completed her twenty-fourth year.

"The Sacred Penitentiary, in reply to the letter of the Ordinary of N.... dated 23 April of this year, concerning the doubt whether the same Ordinary may execute the rescript of matrimonial dispensation for the petitioners Charles D.... and Julia Louisa M...., since among the causes is read the female petitioner's age of twenty-four years, although the female petitioner, as had been set forth, has not yet completed her twenty-fourth year, responds:

"Since another cause for dispensing is present, nothing prevents the aforesaid rescript of dispensation from being put into execution." Sacred Penitentiary, 28 April 1897.

1. Didacus and Aloisia sought from the Holy See a dispensation upon the impediment of consanguinity. The reason brought forward was that Aloisia was without dowry, and Didacus intended to marry her thus without dowry and at the same time to endow her sufficiently. The dispensation having been obtained, and the marriage having been entered, after quarrels arose with Aloisia, Didacus claimed that he should pass to other nuptials because of the nullity of the prior marriage, the invalidity of the aforesaid dispensation standing. For it had inadvertently been left unmentioned that Aloisia had a certain small dowry; and Didacus in reality had insufficiently endowed Aloisia before marriage, since he had assigned only the sum of 500 ducats for the children to be born from the nuptials soon to be contracted.

It is asked: What to the Case?

R. The dispensation was valid in the Case; and therefore the marriage was rightly contracted. Wherefore Didacus cannot marry another. For first, the dowry of Aloisia, considering her condition, was insufficient, and the reticence concerning it, made in simplicity without deceit, was not the cause of the concession, and consequently the concession was not invalid. It is the same that a woman be without dowry and that she be insufficiently endowed. De Iust., de Disp. matr., l. 3, c. 3, n. 20. The Supreme Pontiff is moved to succor a poor female petitioner who, since she either has no dowry or has an insufficient one, is in danger either of remaining unmarried with danger to the soul, or of being compelled to marry an unworthy or unequal man. Therefore, all deceit being removed on the part of the female petitioner, the Supreme Pontiff is equally moved to dispense, whether the petitioner has no dowry or has only a small and insufficient one. But that Didacus did not endow Aloisia in a competent quantity does not harm the validity of the dispensation, since when several causes are set forth, it is enough that the motive cause on which the Dispensation rests be true. Now the motive cause in the Case was that Aloisia had been without dowry. The other cause, that Didacus also wished to endow her, was only an impulsive cause, which does not render the dispensation null, and which besides Didacus at that time also set forth in good faith. S. C. C., July 4, 1722; Giovine, de Dispens. matr., Consult. Canon., v. 1, § 121; I. M. 1036, 1037.

2. "Whether the non-observance of the clause customarily appended in dispensations: some alms having been given according to the judgment of the Ordinary, imports the nullity of the dispensations?

R. Negatively." S. Poenit., June 10, 1876.

3. "The rescripts of the Sacred Penitentiary in matrimonial causes, when public incest has been present, contain at present the following clause: Scandal having been removed, insofar as it is present; especially through separation, if it can be done. In these most wretched times it not rarely happens that the separation of the petitioners cannot be obtained, either because they already have several children to be educated together, or because they can live nowhere else; and then it can scarcely be understood what other reparation of scandal ought to be exacted before the dispensation is granted. We therefore ask that the Sacred Penitentiary may kindly be willing to declare whether this clause, scandal having been removed, must so necessarily be fulfilled that, if it is omitted, the dispensation has been granted nullly.

R. Separation is to be preferred to other modes of reparation of scandal; if this cannot be done, the scandal is to be repaired, but the mode of repairing the scandal is remitted to the prudent judgment and conscience of the Ordinary, according to the requirements of each case. In the case in which separation has been omitted and the scandal has been repaired in another way, let him acquiesce; otherwise, if in some case he has omitted the reparation of scandal, let him be silent and conduct himself more cautiously in the future." S. Poenit., Apr. 12, 1889, Collect. S. C. de P. F. n. 1496, 1498; I. M. 1046.

4. "In the sheet of faculties which the Holy See grants to vicars apostolic, it is had thus: n. 10.º These matrimonial dispensations, namely 6, 7, 8, 9, are not to be granted except with the clause: provided that the woman has not been abducted, or if she has been abducted, that she is not in the power of the abductor; and in the dispensation the tenor of such faculties is to be inserted with expression of the time for which they have been granted. Now, in the time of persecutions which raged in some places, matrimonial dispensations were not even delivered in writing, but orally. But in later times, in dispensations of this sort, it has indeed been inserted that they are granted from the faculty obtained from the Holy See; but by some, neither was the time expressed for which the aforesaid faculty had been granted to the vicars apostolic, nor was the clause set forth: provided that the woman has not been abducted. But this gives rise to doubt because of what is found in Bullar. Bened. XIV, t. 2, pag. 223. It is therefore asked whether the aforesaid dispensations of this sort are licit, or at least valid?

R. The omission of the clauses does not harm the validity of the concessions, provided that in reality the woman has not been abducted, or, if abducted, that she is not in the power of the abductor." S. C. de P. F., Feb. 11, 1804, Collect. n. 1484, 1486, 1487, 1491, 1492, 1494; Collect. ad usum oper. apost. Soc. miss. ad ext. n. 31. 10.º; Comp. Priv. Soc. Iesu n. 390.

5. "It has happened sometimes that, in the petitions which are made to the Holy See for matrimonial dispensations, it was set forth by the Ordinary of the male petitioner, through error, that the female petitioner belonged to the same diocese, whereas by origin and domicile she was of another diocese. Therefore, the favorable Rescript having been obtained, whether through the organ of this Sacred Penitentiary or through that of the Sacred Datary, the doubt has arisen concerning the validity or liceity of the execution. To remove it, humble supplication is made that it may deign to declare:

1.º Whether, considering the norms given by the S. U. I. on Feb. 20, 1888, the dispensation can be validly executed by the Ordinary of the male petitioner, who gave the testimonials, when through error it was said in the same testimonials that the female petitioner was of the same diocese, whereas both by origin and by domicile she belonged to a different diocese?

2.º Supposing that such a dispensation can be validly executed, can it also be executed licitly, without a new recourse to the Holy See?

R. To both, affirmatively; but if the error has been noticed, it must be corrected." S. Poenit., Feb. 6, 1895, M. E. v. 9, p. 1, p. 10.

6. Iulius, desiring to contract marriage with Iulia, his kinswoman in the fourth degree, seeks and obtains a dispensation, Iulia being unaware of Iulius's desire and of his petition for dispensation, since she was unaware also of the existing impediment.

It is asked: Whether the dispensation is invalid in the Case?

R. When the impediment necessarily affects both contracting parties, as do consanguinity and affinity, which cannot affect one only, it is enough that the dispensation be obtained or accepted by the other, so that it may benefit also the other who is ignorant. For dispensation extends to necessarily connected things. But the dispensation of a man for contracting with a woman is annexed to the dispensation of the woman for contracting with the man. And by the very fact that one of them seeks or accepts the dispensation, he becomes able to contract with the other. But this cannot be done unless each is made able. Therefore that dispensation will benefit the other who is ignorant. And it is confirmed, for when the marriage was void because of an impediment of this sort unknown by the other party, the spouse conscious of the impediment can, after obtaining its occult dispensation and without manifesting it to the other spouse, and without manifesting the impediment, simulatedly seek a renewal of consent in marriage.

But if the impediment were of one party only, because one only, for example, has vowed chastity; or if it were so common that it is entirely diverse in each, as if each had vowed chastity, then it is necessary that the one who is affected by the impediment, and if it is both, that both, accept the dispensation, although it can be sought and obtained without his mandate. The reason is that the dispensation is directly obtained for the one having the impediment; nor, when obtained for one, is it obtained by a certain necessary consequence for the other, as happens in the former Case. Therefore he who needs it must know it and accept it; and if each needs it, each must know it and accept it, speaking of the ordinary mode of dispensation.

Therefore, since in the proposed Case the discourse is of an impediment affecting both parties, namely of consanguinity, although the dispensation was sought and obtained while Iulia was unaware, nevertheless it also benefits her. Wherefore, if Iulius afterward manifests to her the desire of marriage, he will be able to contract marriage validly with Iulia, although neither the pre-existing impediment nor the obtained dispensation is manifested to her; and much more if, after the impediment has been manifested to her, the obtained dispensation is also manifested and is accepted by her. Sanchez, l. 8, d. 26; I. M. v. 1, n. 249; v. 2, 1044, 1050.

864. • The causes which are adduced for obtaining a dispensation are: 1. grave or light; 2. motive or final, or merely impulsive; 3. true or false. - See the Treatise On Laws, no. 117 and following.

If in a petition a truth which must necessarily be expressed is concealed, for example, some impediment or a circumstance to be declared, etc., it is called subreption in the dispensation, or a subreptitious dispensation. But if something false is asserted as true, it is obreption, or an obreptitious dispensation.

When dispensations are said to be without cause, this signifies that none of those causes customarily alleged as canonical is present.

865. Principles. - I. A cause is required for the liceity of a dispensation. This is established from the Council of Trent, session 24, chapter 5, On the Reformation of Matrimony: In marriages to be contracted, either let no dispensation at all be given, or let it be granted rarely, for a cause, and gratuitously.

II. For the validity of a dispensation it is required that in the petition there be no obreption or subreption falling upon the motive or final cause. The reason is that the Superior is not considered to dispense except under the tacit condition: if the prayers rest upon truth.

866. Questions. - QUESTION 1. What are the just causes for dispensing from diriment impediments?

Reply. They are the following:

1. The narrowness of the place, that is, if it is feared that because of the narrowness of the place the girl will not suitably marry another. Every place not having three hundred hearths is regarded as narrow; and this holds even if the bride will transfer her domicile elsewhere ¹.

¹ Anyone easily sees that this cause for dispensing is that in that place it is difficult to find a man whom the girl can suitably marry. Nor is consideration given to whether perhaps this difficulty could cease by seeking a husband elsewhere, since that is infrequent and foreign to common customs.

2. The lack of a suitable dowry, which otherwise is offered to the girl by a relative, or by a stranger, but on the condition that she marry the relative. 3. The already advanced or over-mature age of the woman, namely, when she has already exceeded her twenty-fourth year and does not find another man of her condition whom she can marry ². 4. Carnal intercourse already had with a female relative or another person laboring under an impediment, when there is otherwise danger that infamy may follow, etc. 5. Excessive familiarity of the parties, from which scandal is feared unless they marry. 6. The legitimization of offspring born or conceived from fornication. 7. The allaying of grave enmities, or the ending of a lawsuit between the parents, relatives, or relatives by affinity of the petitioners. 8. Christian virtues which probably would not be found in another man. 9. Excellence of merits toward the Church. 10. The preservation of goods in an illustrious family. 11. A large alms to be expended upon pious works. 12. The poverty of a widow burdened with children, whom the man intends and promises to support.

² The same standard does not hold for all places in this matter. For in some places a girl who has attained her twentieth, or even her eighteenth, year is regarded as so over-mature that she finds with difficulty anyone whom she may marry.

It sometimes happens that one cause taken separately is not sufficient, but, joined with another, is regarded as grave and therefore suffices.

The causes now admitted as canonical for the second and third degree are: narrowness of the place, lawsuits to be avoided, intercourse already had, scandal to be removed, and the over-mature age of the woman. - Bouvier.

The suppression of the truth, or the expression of what is false, concerning those things which by law, custom, or the style of the Roman Curia must be disclosed, is always regarded as substantial.

867. • QUESTION 2. What things must necessarily be expressed by law, under pain of invalidity, in a petition for a dispensation?

Reply. They are the following: 1. The true and legitimate cause moving one to obtain the dispensation. 2. Even the lowest species of the impediments, for example, affinity from licit or illicit intercourse; public propriety from betrothals or from a ratified marriage. 3. The number of impediments, for example, if besides relationship there is also affinity, or if there is double or multiple consanguinity or affinity. 4. Filiation or co-parenthood in spiritual relationship. 5. The degree of consanguinity, affinity, or public propriety from a ratified marriage; indeed, if the petitioners are in an unequal line, the nearer degree must also be expressed. This, however, is not required for validity unless they are joined in the second degree touching the first. 6. Incestuous intercourse had between the petitioners, whether with the intention of obtaining the dispensation more easily or even apart from such an intention ³. This is proved from the Bull Pastor bonus of Benedict XIV.... 7. The various circumstances of a marriage celebrated with an impediment, namely, whether clandestinely; whether with the required proclamations; whether with the good or bad faith of both parties, or of only one of them; whether with the hope of obtaining the dispensation more easily; and whether the marriage was consummated.

³ 1. In this place the Author followed St. Alphonsus, who (book 6, no. 1135) judged that this controversy, which until that time the Doctors had customarily disputed on both sides, must now be called entirely settled; and therefore he hands it down as indubitable that, if the circumstance of incest is kept silent, although it was not committed for the purpose of obtaining the dispensation more easily, the Rescript is so vitiated that the dispensation is void, and consequently the marriage invalid.

Thus the Holy Doctor (book 6, no. 1135): But it must altogether be held (that the marriage is null).... And concerning this there is no longer any doubt today from the Bull Pastor bonus of Benedict XIV, where section 41 says: "But if the petitioners shall have obtained from Our Datary a dispensation upon a prohibited degree in the first and second, or in the second only, and also in the third or fourth, with the intercourse which followed between them kept silent, which they cannot disclose without detriment to honor; and by reason of such silence they seek a dispensation for contracting marriage, or a revalidation of one contracted; the same Major Penitentiary may, if the intercourse is still secret, grant a dispensation of this kind, or respectively a revalidation, in the forum of conscience only; a composition of fifty gold ducats of the Camera being made, when there is question of the first and second, or the second degree only, to be transmitted to the Datary for the purpose (as is the unshaken custom) of being expended in alms, etc." To these words St. Alphonsus adds: From these things observe that the Pope, by saying, "may grant a revalidation," does not hold as valid marriages contracted with such concealment.

And again (Homo Apostolicus, treatise 18, no. 85): Concerning this today (says the Holy Doctor) every doubt ceases, since it was declared by Benedict XIV in the Bull Pastor bonus (section 41), where a marriage from a dispensation obtained with INCEST kept silent is pronounced void.

2. But the opinion of Blessed Alphonsus (which some afterward copied), as well as the argument drawn from the Constitution of Benedict XIV, does not appear to be without its difficulties.

And indeed, to set aside for the moment the foregoing words of Benedict's Constitution, it must not be denied that the opinion which afterward pleased St. Alphonsus at one time also pleased Benedict XIV, or, to speak more precisely, Lambertini. For in Instruction 87, which he published for the Confessors of his diocese of Bologna so that they might know fully those matters for which recourse must necessarily be had to the Cardinal Penitentiary, he has the following (no. 13): Writers indeed contend among themselves whether these things must be openly set forth (namely, the intercourse which occurred, or the will and design that they might obtain the dispensation more easily) in order that the impediment of consanguinity or affinity may be dispensed by the Apostolic See; yet in reality no room for doubt remains, since the Supreme Pontiffs have most clearly declared their mind concerning this matter. For in their Letters, when they impart some dispensation, under pain of subreption or obreption they indicate that not only the intercourse, if it occurred previously, but also with what design and will it was entered into, must be explained. For this he cites Corradus, Practice of Dispensations, book 8, chapter 1, no. 36 and following, and Father Syrus on the Constitution of Innocent XII, faculty 32, section 26, and faculty 33, section 27.

3. But from these citations no slight difficulty now arises. For Corradus (loc. cit., no. 37) gives as the reason why the dispensation is null that incest is by law an impediment; and he tries to confirm this by a Declaration of the Sacred Congregation which we reported elsewhere (above, note to no. 776), in which it is read: For this reason, that such relatives by consanguinity and affinity, through this intercourse, were rendered incapable of contracting marriage, from the fact that they are said to have committed incest, which prevents incestuous persons from contracting marriage.

But according to St. Alphonsus this reason adduced by Corradus is altogether defective. For we have already shown elsewhere (note to no. 776) that according to St. Alphonsus both the impediment of incest and the others which were comprehended under the prohibitory impediment of Crime were so removed by force of custom that they no longer need dispensation. Thus the Holy Doctor (Homo Apostolicus, treatise 18, no. 53): Under this name (CRIME) certain offenses were formerly comprehended, namely INCEST with one's own mother (the Canon must be understood not of a mother but of a godmother), the abduction of another man's betrothed, etc.; but this impediment also became obsolete through desuetude. And again (book 6, no. 857): Other impediments (namely, INCEST, the abduction of another man's betrothed, etc.) TODAY ARE NOT IN FORCE, NOR DO THEY NEED A DISPENSATION. Nor, as we have already seen (note to no. 776), must this be called a singular opinion of St. Alphonsus; for it was shown there that this is the most common opinion of all. Indeed, the same Holy Doctor (book 6, no. 905) calls it the common opinion that the impediments of incest and other crimes have been removed through non-use: Thus (he says) also Concina and the Salmanticenses with Sanchez and the COMMON opinion. Therefore, in the judgment of St. Alphonsus together with the most common opinion of all, this argument of Lambertini, if indeed he wished to rest upon the testimony and authority of Corradus, already plainly collapses.

4. Nor is the other citation of Father Syrus from a manuscript work for the use of the office of the Sacred Penitentiary, bearing the title On the Constitution of Innocent XII, etc., of any greater force. Lambertini cites from that manuscript faculty 32, section 26, and faculty 33, section 27. Nothing need be said at present about the latter citation, because there it treats of those who in committing incest proposed to themselves this end, that they might obtain the dispensation more easily. Therefore, a few words about the former, in which Father Syrus appears to have wished to avoid the difficulty which we noticed arising in Corradus's reason. Father Syrus therefore writes thus: It must be observed that although incestuous intercourse between relatives by consanguinity or affinity does not present any impediment to marriage, nevertheless a dispensation obtained from the Datary is subreptitious and invalid if, in obtaining it, mention is not made of the said intercourse previously had between them. Having excluded in this way the reason adduced by Corradus, Syrus substitutes the little reason employed by Sanchez, from whom he had also copied the foregoing. For he continues thus: For such is the style of the Curia which has prevailed, that this incest be declared for this purpose, that through fear of having to make this disclosure relatives by consanguinity and affinity may be deterred from incestuous intercourse, as Sanchez notes, book 8, disputation 25, no. 8.

5. But how wretched these things also are! Syrus premises that incestuous intercourse between relatives by consanguinity or affinity does not present any impediment to marriage.

Let pass for the moment what Syrus intermingles concerning incest between blood relatives. Since the laws merely make provision concerning incest between relatives by affinity, this addition is due to empty reasonings drawn from the fact that incest was mentioned generally in the verses denoting crimes which impede marriage; and indeed it is due to reasonings drawn contrary to the very well-known maxim of Law that odious things are to be restricted. Against this addition Giraldi (Notes to the Thesaurus, On Penalties, part 2, word Incest, chapter 1) suitably warns that the Canon If anyone with his mother, canon 17, cause 33, question 2, from which some inferred that incest between blood relatives also was comprehended by that law, treats of a godmother, and by no means of a mother who is a blood relative.

But what pertains more closely to the matter: does not Syrus himself show most plainly that his assertion is false when he reports the formulas of Dispensations? For (On the Formulas of Matrimonial Dispensations, part 2, chapter 2, formula 3) he thus reports the formula of a Dispensation For contracting, upon incest not expressed in the letters obtained from the Datary: Moreover, by Apostolic Authority specially delegated to me, I dispense you FROM THE IMPEDIMENT ARISING FROM INCESTUOUS INTERCOURSE which you had with your relative by consanguinity or affinity, so that, notwithstanding THE AFORESAID IMPEDIMENT, you may and can licitly contract marriage with her.... And again (ibid., formula IV), he himself thus reports the formula of a Dispensation Upon a marriage contracted, concerning incest concealed in the Datary: Moreover, by Apostolic Authority specially delegated to me, I dispense you FROM THE IMPEDIMENT ARISING FROM INCESTUOUS KNOWLEDGE not expressed in the letters of Dispensation by virtue of which you contracted, so that, notwithstanding it, you may licitly contract marriage anew with her, with consent renewed, and consummate it, and remain in it. What, then, is more wretched and monstrous than for someone to deny that incest presents any impediment to marriage, and not hesitate to appeal to the style of the Curia to prove this, and afterward himself to report the formulas of Dispensation in which incest is exhibited as an IMPEDIMENT OF MARRIAGE and then dispensed as an impediment? Can the style of the Curia, to which Father Syrus appeals, be known better from any other source than from the formulas of Dispensation?

It must therefore again be concluded that Lambertini rests upon the testimony of a man who shamefully contradicts himself in this matter. But here again it must be recalled that, in the judgment of St. Alphonsus together with the most common opinion of the Doctors, the argument drawn from this has no force, since the prohibitory impediments of incest or other crimes were removed by ancient custom and do not need a dispensation. Therefore, the argument which Lambertini draws from the citation of Syrus also has no force.

6. We called it a little reason, however, namely, the reason which, as we indicated above (no. 4), Syrus copied from Sanchez in order to substitute it for the argument which others used to establish the necessity of expressing the incest, and which Lambertini in turn appears to have copied from Syrus; for he himself also writes (loc. cit.): But the Supreme Pontiffs wisely established this, that they might keep the most grave crime of incest far from blood relatives. And to these words Lambertini indeed appends the aforesaid citation of Corradus and Syrus. That citation can further displease for a twofold reason: first, because he cites two men of whom one contradicts the other, while one denies that incest introduces an impediment to marriage, but the other affirms this very thing and indeed establishes it as the foundation of his thesis; and then because, while he substitutes blood relatives for relatives by affinity, he follows the opinion of certain persons founded upon an empty deduction rather than the prescriptions of Law. For that which we reported from Navarrus (note to no. 776) is sufficiently well known: almost all theologians hold that from incest with a blood relative there indeed arises the impediment of affinity, BUT NO OTHER, whether it is committed before or after the marriage has been contracted. Among these are St. Thomas, Sotus, St. Antoninus, and Sylvester, whom Covarruvias also follows, etc.; and Sanchez, as we shall presently see, confirms this.

Whatever may be the case concerning this, Sanchez certainly observes (book 8, disputation 25, no. 6) that the truer opinion holds that FROM INCEST WITH BLOOD RELATIVES NO IMPEDIMENT OF MARRIAGE ARISES; and also that incest with relatives by affinity, although it produces that impediment, has nevertheless been removed by contrary custom and NEEDS NO DISPENSATION. From this he concludes that there is no reason why a dispensation from the impediment of consanguinity or affinity, with that incest kept silent, should be subreptitious. Therefore, in order nevertheless to defend against the other opinion, which he calls probable, the necessity of disclosing incest not only with relatives by affinity but also with blood relatives, he has recourse to the aforesaid reason. The legitimate foundation of this opinion, he says (loc. cit., no. 8), is not that this incest presents some impediment to marriage. FOR THE CONTRARY IS TRUER. But the foundation is the style of the Curia..., and its reason is that through fear of having to make this disclosure relatives by consanguinity and affinity may be deterred from incestuous intercourse. Hence also are those words of Lambertini (loc. cit.): They wisely established this (the Pontiffs), that they might keep the most grave crime of incest far from blood relatives.

But perhaps others will with difficulty admire the marvelous wisdom of the Pontiffs in a law described in these colors. A remedy and restraint against the crime of incest was sought, namely, as they say. Now such a remedy and restraint can indeed be perceived in that law which was customarily deduced from the old Law expressed in title 13, book 4, On Him Who Has Known a Blood Relative of His Wife. For a penalty was inflicted upon incestuous persons of this kind, by force of which they were to be deprived perpetually of the hope of contracting marriage with any person, since the crime of adultery was also added to that incest. Therefore, everyone guilty of this crime was prohibited from marriage without a dispensation, to be obtained at least from the Bishop. But to what, finally, does a remedy of this kind come according to this new theory, which confines any penalty only to those few among all incestuous persons who might wish to contract marriage with one another? And indeed in such a way that the penalty no longer consists in a prohibition of marriage between them, which could be relaxed or not relaxed according to the just judgment of ecclesiastical authority, but resides in the mere disclosure of the crime, which disclosure, moreover, imposes no burden of itself whenever the matter is to be transacted with the Sacred Penitentiary under fictitious names? Does there shine forth in this new remedy for restraining incest that wisdom which could be found in the penalty imposed by the old law?

7. But another difficulty of no little weight also occurs in that paragraph of Lambertini's Instruction. No room for doubt remains (he says), since the Supreme Pontiffs have most clearly declared their mind concerning this matter. For in their letters, when they impart some dispensation, under pain of subreption or obreption they indicate that not only the intercourse, if it occurred previously, but also with what design and will it was entered into, must be explained.

Let the latter point pass, concerning which no one doubts. St. Alphonsus writes excellently after all the others (book 6, no. 1134): It is common among all that, if intercourse was had on the part of both for obtaining the dispensation more easily, and intercourse is alleged as the sole cause for obtaining the dispensation, then that evil intention must necessarily be expressed; otherwise the marriage will be null, because no one ought to profit from his own crime.

The difficulty remains in the other member, namely, when intercourse was had entirely without that depraved intention. Lambertini appeals to the letters by which a dispensation is imparted. But it does not sufficiently appear how he effectively derives his conclusion from letters of Dispensation of this kind. For this conclusion could be deduced by him from these Letters of Dispensation insofar as incest is spoken of in them as an impediment of marriage, which therefore must necessarily be mentioned by those who seek a dispensation from another impediment, for example, affinity, and the concealment of which impediment therefore renders the dispensation subreptitious. For in fact, in the formulas of dispensations which we transcribed above (no. 5) from Father Syrus, incest is exhibited as an impediment of marriage. And we discern this very same thing in the formulas of Letters which Father Paul Marcus Leo presents in his Practice Concerning Apostolic Letters and Those of the Sacred Penitentiary. Thus, for example, in the Dispensation given to those who, before the Ordinary executing the letters of Dispensation, falsely denied that intercourse had occurred, although in reality it had occurred between them, it is read (op. cit., part 2, page 309): Provided that THE IMPEDIMENT ARISING FROM THE AFORESAID INCESTUOUS KNOWLEDGE is occult, etc. And again:

(Ibid., page 316): But since the aforesaid Dispensation (from the third degree of consanguinity) is invalid because of the aforesaid carnal intercourse not expressed in the letters..., provided that THE IMPEDIMENT ARISING FROM THE AFORESAID INCESTUOUS KNOWLEDGE is occult..., mercifully dispense, etc. But if Lambertini is to be considered to have drawn his conclusion from this (and certainly he could not have drawn it from elsewhere), behold, on the contrary, Father Syrus, to whom he himself refers the reader in this matter, absolutely denies (above, no. 4) that incestuous intercourse between relatives by consanguinity or affinity presents any impediment to marriage! And to Father Syrus may be added both St. Alphonsus, who (above, no. 3) teaches absolutely that the impediment of incest is no longer in force and does not need a dispensation, and (see note to no. 776) the most common opinion of the Doctors, which professes that an impediment of this kind was entirely removed by long-standing and therefore legitimate custom. It remains, therefore, that the conclusion of Lambertini's Instruction rests upon the little reason which Father Syrus, cited there, had taken from Sanchez, and by which Sanchez (above, no. 6), having excluded the reason drawn from the antiquated impediment of incest, nevertheless endeavored probably to prove the necessity of expressing incestuous intercourse. But even if what we indicated above is now passed over, namely, that a reason of this kind appears plainly unhappy and less worthy of the wisdom of legislators, the context of the Apostolic Letters to which Lambertini there appeals stands entirely in the way besides. For in them the whole reason for subreption, as we have already seen, is established in this: that the petitioners, while seeking a dispensation from the impediment of affinity and keeping silent about the incestuous intercourse, conceal this other impediment of marriage, which no less than the first needs a dispensation, as Corradus, cited there together with Father Syrus, openly holds. Therefore, the little reason taken from Father Syrus and Sanchez is also overthrown by the appeal to the Apostolic Letters.

It is therefore already sufficiently clear that this part of Lambertini's instruction to his clergy of Bologna is burdened by most grave difficulties. It is therefore no wonder that his own clergy of Bologna deferred so little to this doctrine of their Archbishop that, during that very time, as we shall see, in a solemn Resolution of Cases of conscience they departed into the opposite opinion.

8. But enough now concerning the argument which someone might perhaps draw from that Instruction of Lambertini, all the more because below (no. 30) we shall see the same Lambertini excellently refuting the arguments which are drawn from Apostolic letters of Dispensations. Let us now return to the argument which the Holy Doctor Alphonsus (above, no. 1) draws from Benedict's Constitution Pastor bonus, and which he proposes as the sole and decisive argument.

It was said above (no. 2) that this opinion of the Holy Doctor is not without its difficulties. And indeed, in the first place, this occurs: the Holy Doctor himself freely concedes that before Benedict XIV this controversy was freely disputed on both sides in the schools. Indeed, in the Naples edition of his work of the year 1748, he himself did not hesitate to follow as truly probable the opinion opposed to Lambertini's (book 6, treatise 6, chapter 3, doubt 4, note C, question 3). And for other reasons also it is worthwhile to report the text of the Holy Doctor. To the question, namely, When a dispensation is sought for a marriage between relatives, must incestuous intercourse had between them be expressed? he replies: There is a twofold probable opinion. The first affirms that it must be expressed in the Sacred Penitentiary if the intercourse was occult, but in the Datary if it was public. Thus Palaus, Sanchez, Laymann, Coninck, etc., among the Salmanticenses. And they testify that the Sacred Congregation declared this to be the style of the Roman Curia. The second opinion, however, denies it, because incest of itself is not a diriment (understand prohibitory) impediment of that marriage, nor does it render the dispensation more difficult. Thus the Salmanticenses with Ledesma, Hurtado, Henriquez, Perez, Rodriguez, Basilius, Villalobos, Praepositus, and others. And Sanchez RIGHTLY calls it probable. From this they infer that, if a dispensation is committed to the Bishop and he asks about the intercourse, the contracting parties can deny it even with an oath, since the interrogation is probably not legitimate. And this, EVEN IF IN THE PONTIFICAL RESCRIPT IT IS SAID: PROVIDED THAT INTERCOURSE HAS NOT OCCURRED BETWEEN THEM. Because this is understood, etc.

9. Let these latter consequences now be set aside; they can certainly appear of great moment to those who judge that this opinion, which St. Alphonsus held as truly probable, should be preferred to the opinion toward which he afterward inclined (above, no. 1). Meanwhile, let these points be noted: 1. St. Alphonsus judged that nothing should be deferred here to the judgment of Sanchez, who (book 8, disputation 25, no. 8) had called that first opinion far truer; 2. he judged the little reason by which Sanchez defended his opinion (above, no. 6), which Father Syrus and Lambertini afterward copied, not even worthy of mention; 3. here also the Holy Doctor repeats that incest is not an impediment of marriage which needs a dispensation, and since he constantly retained this thesis even after he departed from the foregoing opinion, it does not easily appear by what intrinsic foundation the Holy Doctor could fortify his new doctrine (above, no. 1); 4. but it was to be desired that in this place, just as for the first opinion he indicated the Declaration that such is the style of the Curia, so for the second he had not kept silent about what, as Sanchez also reports (loc. cit., no. 6), Gutierrez has (Canonical Questions, book 1, question 15, no. 11), writing: With the same opinion agree two other distinguished theologians of this city; indeed, I was informed THAT ACCORDING TO IT JUDGMENT WAS GIVEN TWICE IN ONE CASE. And after the first edition of this work, Navarrus, one of the aforesaid, advised that a dispensation upon the impediment of consanguinity or affinity, without mention being made of intercourse previously had, is valid and that another dispensation of the Pope is not required.

10. But what is chief, while the Holy Doctor plainly professes both in words and in deeds that until his own time this question was freely disputed on both sides in the schools and within the bounds of probability, by that very fact someone will rightly conclude that almost all the force is cut away from the argument which he thought could be deduced for his new opinion from the aforesaid Constitution of Benedict XIV (above, no. 1).

And indeed, whatever may be drawn and urged from the Constitution Pastor bonus of Benedict XIV, these same things are read in the Constitution Romanus Pontifex (September 3, 1692), by which Innocent XII, no less than Benedict XIV in his own Constitution, enumerates and establishes the faculties of the Major Penitentiary and the Office of the Penitentiary, so that the words of Benedict XIV plainly appear to have been copied from the Constitution of Innocent. For Innocent XII thus says (cited Constitution, section 34): But if the petitioners who shall have obtained from Our Datary a dispensation upon a prohibited degree both in the first and second and in the second only, and also in the third or fourth, with the intercourse which followed between them kept silent, which they cannot disclose without detriment to honor, and by reason of this concealment seek a dispensation for contracting marriage or a revalidation of a marriage contracted, the same Major Penitentiary may, if the intercourse is still secret, grant it in the forum of conscience only; a composition of fifty gold ducats of the Camera being made, when there is question of the first and second, or the second degree only, to be transmitted to the Datary for the purpose, as is the unshaken custom, of being expended in alms, etc.

From this, however, someone will reason by an obvious argument in this way: Either it is contended that by these words of the Constitution of Innocent the necessity of expressing incest is defined and, consequently, that if the incest is kept silent the Rescript of dispensation is invalid; or it is contended that these things are in no way defined there. If it is contended that this question must be held as defined from the words of Innocent, then it is held and asserted with less consistency that the matter was freely disputed by both theologians and canonists in the schools, and could be disputed without censure, until Benedict XIV settled the contest by his Constitution; for the question ought then to be said to have been settled earlier by Innocent. But if it is contended that this controversy was not resolved by the Constitution of Innocent, it must be conceded, whether they wish it or not, that the controversy was in no way defined by the Constitution of Benedict either. And the reason for this conclusion is sufficiently manifest. For the sentence of each Constitution is wholly one and the same, and moreover their authority is at the same time one and the same. Indeed, does not St. Alphonsus himself hold the Constitution Pastor bonus as a mere confirmation of the Bull of Innocent XII? For the Holy Doctor writes thus (book 6, no. 1144): It is asked in what impediments the Sacred Penitentiary has the faculty of dispensing. For the explanation of this question, which can be of great profit for the practice of Pastors and Confessors, I have judged it worthwhile to note here those things which are contained in the Bull of the Supreme Pontiff Benedict XIV which begins Pastor bonus, issued on April 13 in the year 1744, where the Bull of Innocent XII, issued on April 3, 1692, beginning Romanus Pontifex, IS CONFIRMED AND INSERTED. Therefore, wherever you finally turn, that new assertion of the same St. Alphonsus, that TODAY AFTER BENEDICT XIV there is no longer any room for doubt concerning this controversy, can in no way be admitted.

11. Hence also that appears to collapse which the distinguished man Peter Giovine has in the very recent work On Matrimonial Dispensations, Naples, 1866, where (consultation 27, section 9, no. 8) he writes: Today the matter is settled, that the dispensation remains void... if incestuous intercourse is concealed...; and this... was definitively declared by Benedict XIV through the celebrated Constitution which begins "Pastor bonus." For we find nothing in the words of Benedict which declares those things more than was said in the Constitution of Innocent. And if you do not contend that the controversy is defined by the words of Innocent XII, then indeed, since Benedict XIV merely repeats the sentence of his Predecessor, no new declaration which defines the matter can be conceived there. Indeed, since Benedict knew very well that by the Constitution of Innocent the controversy had so little been held as defined that it was disputed most freely on both sides in the Catholic schools, as he himself testifies in his Instruction 87, as we have seen, certainly if he had wished to declare anything further, if he had wished to define anything, he ought to have added something to the sentence of his Predecessor and changed something in it, so that at last the theologians and canonists might understand the sense and force of the Constitution of Innocent. But he added nothing and changed absolutely nothing in it. Therefore, by the very fact that he added nothing further to the Constitution of Innocent but merely repeated Innocent's words and sentence, he showed sufficiently and more than sufficiently by the fact itself that he wished to define or declare nothing, and wished to preserve the whole matter in the status quo, as they say, that is, to permit it, no less than his Predecessors the Pontiffs, to the free disputation of theologians and canonists.

12. And this reason indeed draws a certain greater force from the fact that Benedict XIV himself, while still in a lower dignity, had shown himself persuaded that the Roman Pontiffs had openly declared, under pain of subreption, the necessity of expressing the intercourse. See what was said above concerning his Instruction 87. For the graver and grosser the common error of all the Doctors could appear to him, not one of whom until that day had suspected, as will appear below, that the Roman Pontiffs had interposed any judgment on this question, the more vehemently did reason urge him, once made Pontiff, to declare in at least some manner what sense underlay the words of Innocent XII. Yet he did nothing of this kind.

13. But this also must be added here: from that Instruction 87 it is sufficiently deduced that Benedict XIV himself found nothing in the Constitution of Innocent XII which effectively contributed to the resolution of this controversy. And indeed, why is it that, while in that Instruction he strains every nerve to prove the necessity of expressing incestuous intercourse, he nevertheless does not take an argument from the Constitution of Innocent, but has recourse to the Apostolic letters of Dispensations which are customarily given by the Offices of the Sacred Penitentiary and the Datary, and refers to Father Syrus and Corradus, who report these formulas and add to them whatever commentary they can? Shall we suspect that the Constitution of Innocent was unknown to Lambertini himself, when for several years he exercised the office of Doctor of the Sacred Canons in the very Office of the Sacred Penitentiary? Or shall we think that he regarded as more effective an argument drawn from formulas of dispensing of this kind rather than from that Pontifical Constitution, although elsewhere, as we shall see, he himself defends most keenly and invincibly that no effective argument can be deduced from them? Or, finally, was Benedict XIV so slow of mind that in the Constitution of Innocent, which in this very Instruction (loc. cit.) he cites merely in order to indicate the faculty of dispensing handed down by Innocent, he did not even from afar and dimly perceive anything of that argument which St. Alphonsus believed himself to have discovered most clearly and decisively in those words for ending the question? And if Benedict XIV found nothing in that Constitution suited to settling this controversy, so that in that Instruction he expressly testifies (above, no. 2) that after the Constitution of Innocent and down to his own days a question of this kind was customarily discussed on both sides, how can anyone suspect that Benedict XIV, by employing the same words which he knew had been employed by his Predecessor Innocent XII, wished to settle this controversy?

14. To this is added that, after that Instruction 87 had been issued, among the clergy of Bologna whom he himself then governed as Archbishop, the opinion defended and inculcated by him had so little prevailed that, when in the ecclesiastical meetings customarily held in the metropolitan Church for discussing moral questions, and at which he himself testifies that he was accustomed to be present (Instruction 87, no. 1), the case of which we now speak was proposed, an opinion contrary to his persuasion and encyclical Instruction was adopted, as we shall see a little below. I said, after that Instruction had been issued; for the meeting in which the case was resolved was held in September of the year 1740, while the Instructions had appeared first at Bologna, each separately at the time when it was proposed; then all collected together in the same city; and again in the year 1740 at Venice according to the model of the Bologna edition. Therefore, the more difficult he saw it to have his opinion received even by his own clergy, the more necessary some declaration must have appeared to him, by which an opinion which in his judgment contradicted Apostolic Rescripts of dispensations might at last be abolished. Yet no trace of such a Declaration appeared. Therefore, by this very fact Benedict's later intention discloses itself, namely, to define nothing concerning this matter.

15. And the force of this conclusion also appears to be increased from this: if Benedict XIV had really wished by his Constitution to define something and to correct the common opinion which, according to the opinion stated above, was erroneous, he certainly would have chosen a less suitable manner of executing his design. For not only would a mere repetition of the words of Innocent have been an inept mode of declaring Innocent's words, but besides, the condition of an error common among all the gravest Doctors would altogether have required that the Declaration or Definition be issued and promulgated in that manner by which the correction of the error could easily be obtained. But a promulgation suited to attaining this purpose will scarcely be found in Letters given to the Major Penitentiary in which his faculties are enumerated; and, on the hypothesis of such a Declaration, the facts confirm this, for, as will be openly evident below, no one in the City of Rome itself, so long as Benedict XIV held the Pontificate, had knowledge or even suspicion of this supposed Declaration or Definition.

16. But one could suspect such a Definition all the less because no one is ignorant that it was the most constant custom of the same Pontiff, if ever he determined to interpose his judgment in some grave controversy concerning which the Doctors had previously disagreed among themselves, never to omit to set forth, or at least to indicate, the state of the controversy, nor was he accustomed to pass over in silence the reasons persuading either side; but he always added some express indication of his mind and purpose by which it was openly established that by his own Authority he wished to put an end to the controversy. Yet not the least trace of all these things can be found in his words cited above.

17. Furthermore, that in reality nothing concerning this controversy was defined by the Constitution of Innocent can be gathered not obscurely from another source. For once it becomes known, first, that most Authors who afterward fought for the necessity of expressing incest nevertheless, no differently than others had generally done before Innocent, proposed their thesis within the bounds of probability; second, that there were others, and very many of them, who after the Bull of Innocent was issued contended, at least as more probable, that there was no need for the circumstance of incest to be expressed in petitions for dispensations; and third, finally, that whichever of the contrary opinions the Authors supported, none of them, either for or against, brought forward the Constitution of Innocent, which otherwise they did not ignore, or even made any mention of it; it must certainly appear sufficiently manifest that, according to the common understanding of the Doctors, the aforesaid Constitution contributed nothing toward resolving the present question. And a reading of the Authors who flourished from the time of Innocent XII easily shows that the matter stands thus with respect to each of those three points.

18. And to begin with the first, among those who, although they defended the necessity of expressing intercourse, nevertheless after Sanchez held it only as more probable, or inclined more to neither side, let there be, for example, Mazzotta, who writes thus (treatise 7, disputation 1, question 3, chapter 3, section 3, no. 3): But whether one seeking a dispensation from consanguinity or affinity with Bertha ought also to express the incestuous intercourse committed with her is a dispute among the Doctors. And after saying that Sanchez affirms it with many, while others contradict, he himself adds nothing further.

Thus Collet (Treatise on Dispensations in Particular, part 1, chapter 17, article 1), who, after adducing the opinion of Sanchez, adds: I think this opinion, as the safer and at least equally probable with the opposite, must be adhered to.

Thus La Croix (book 6, part 3, no. 922): If you have known your relative by consanguinity or affinity in a diriment degree, and afterward, wishing to contract with her, seek a dispensation but do not express that intercourse occurred, Navarrus, Gutierrez, Ledesma, Rebellus, Laymann..., Sanchez very probably say that the dispensation is void.... Others, however, hold the opposite with Henriquez, Salas, Vega, Rodriguez, Diana, Pontius, Hurtado, Krimer, Perez, and Aversa, who calls it safe in practice....

Thus Simonnet (treatise 18, disputation 5, section 23), while adhering to the opinion of Sanchez, nevertheless also reports without any censure the opposite opinion of the others.

Thus also Kugler (On Matrimony, no. 259) holds with Sanchez as more probable that the dispensation is surreptitious if the incest is concealed. But he observes that the betrothed are not to be questioned about this where the practice does not prevail.

Add to these also Louis Habert, who (On Laws, chapter 10) teaches that a dispensation is not surreptitious if through ignorance the circumstance of incest is not expressed.

19. But as regards the many more others who after the Constitution of Innocent maintained, at least as more probable, that there was no need for the circumstance of incest to be expressed, let Vincentius De Iustis lead their line. He was somewhat near to and almost contemporary with Innocent XII, and he treated this argument expressly and deliberately (On Matrimonial Dispensations, book 1, chapter 4, nos. 250-364); and after he had fundamentally, most fully, and at the same time most learnedly examined this matter on every side, he concludes thus: From all these things taken together it is sufficiently and more than sufficiently established that the expression of the intercourse is not necessary... if the petitioners have another cause which moves the Pontiff to grant the dispensation, since concealment of the intercourse itself does not intrinsically affect the dispensation... and it is not commanded to be expressed by any law, style, custom, Council, Canon, Decree, Rule, or Constitution. Moreover, he had premised (no. 317) that many Doctors... most openly taught this opinion in their treatises to be probable and safe in practice, AND DAY BY DAY CONTINUE TO TEACH IT.

Not long after Innocent XII and Vincentius De Iustis, Constantinus Roncaglia wrote his moral work. Having premised (treatise 21, question 4, chapter 3, question 10) that according to the more common opinion the intercourse must be expressed if it is public, although, as he says, not a few assert the contrary, he then adds: The foregoing holds if the intercourse is public, for it must not be expressed if it is occult. And although Sanchez wills that occult intercourse must be disclosed when a dispensation for an impediment is sought from the Sacred Penitentiary, nevertheless others affirm that this is not necessary; for just as the Datary or Chancery dispenses even for the internal forum although occult intercourse is not expressed, so the same must be said of the Penitentiary when, besides the intercourse, there is another legitimate cause for seeking the dispensation, all the more because incest with one's own blood relative does not need a dispensation.

Near the time of Innocent's Constitution was also Dominicus Viva. Yet to the proposed question whether a dispensation is valid if the intercourse is kept silent (On Matrimony, question 6, article 3, no. 8), he replies: Sanchez with others denies it... but Pontius... and others cited by Perez probably TEACH that the dispensation in the case adduced is valid, because neither does incest need a dispensation, nor is it commanded by any law that it be expressed; and besides, if the incest is expressed, the dispensation is rendered easier, not more difficult.

John Reuter was about their contemporary, and he writes thus concerning this matter (Moral Theology, part 4, treatise 8, no. 583): One who seeks a dispensation in order to marry a blood relative or relative by affinity whom he has known, and does not express the intercourse, has an invalid dispensation according to Sanchez and others; a valid one according to Krimer and others, because if he had expressed the intercourse the dispensation would have been easier. Nor does the contrary style of the Curia stand in the way when it is not confirmed by a Decree of the Pontiff, which does not exist.

Likewise John Clericatus, who (On Matrimony, decision 40, no. 11) discusses this question thus: If carnal intercourse has occurred between betrothed persons having the diriment impediment of consanguinity or affinity, must it be expressed to the Pope under pain of a subreptitious dispensation? There is a great dispute among the Doctors, whom the Salmanticenses report as asserting each opinion to be probable, but the negative to prevail; this is also embraced by Vincentius De Iustis (On Matrimonial Dispensations, chapter 4), where he calls this Question great and difficult; but at no. 259 he limits it to when in the Bull of dispensation there is the clause, "Provided that intercourse has not occurred," which, however, he says at no. 263 is not inserted today in Bulls of matrimonial dispensations; and Pyrrhus Corradus, book 8, chapter 8, no. 20, testifies to this, inveighing against Vicars who execute those dispensations and ask the petitioners whether they have had intercourse together, when they do not have this in their mandate. It is true, however, that concerning this question the Doctors suppose the dispensation to be sought and obtained from some other reasonable cause, namely, because of the narrowness of the place...; in view of these, or of any one of them, there is no need to express the intercourse which perhaps the betrothed blood relatives had with each other, as Vincentius De Iustis himself concludes after a long disputation.

Thus also Schmalzgrueber (book 4, title 16, no. 197): If the intercourse is occult, its expression is not necessary, as Sanchez teaches with others.... Nor in this case is there need to set forth the occult intercourse before the Sacred Penitentiary and petition that it supply the defect of the dispensation, both because incest with one's own blood relative does not need a dispensation, and because no solid foundation for this expression appears.

Reiffenstuel has nearly the same (appendix to book 4, section 4, nos. 191-192): It is said (he says) notably, If the intercourse is now public; for if it is occult, Sanchez rightly teaches with others that its expression is not necessary.... And although Sanchez wills that occult intercourse must at least be set forth before the Sacred Penitentiary, and it must be petitioned to supply the defect of the dispensation, nevertheless no solid foundation for this expression appears... especially since incest with one's own blood relative does not need a dispensation.

Thus also Maschat (at the end of book 4, treatise On Dispensations, section 3, no. 24): If intercourse is alleged as the cause, it must be expressed whether it was had in the hope of obtaining the dispensation more easily; and if another cause is alleged, nevertheless public intercourse must be expressed according to the style of the Curia, but not occult intercourse.

To this must be referred the fact that Cardinal Gotti (On Matrimony, question 7, doubt 2, section 3, no. 17) presents the expression of intercourse merely as something safer and fitted for removing scruples, even if the incest was committed for obtaining the dispensation more easily: Nevertheless, for removing (he says) all doubts and scruples, it is safer that those who seek a dispensation faithfully and sincerely set forth all things which can assist or delay the dispensation, namely, expressly and distinctly the degree of consanguinity or affinity, and the incest, if it was committed for the purpose of obtaining the dispensation more easily. A fortiori, however, as is evident, according to the distinguished Cardinal the expression of intercourse is not necessary if it was not had for that end, that the dispensation might be obtained more easily.

Vitus Pichler is no different (book 4, title 16, no. 37), where he writes: It must nevertheless be noted that mention of the intercourse, if it is occult while the impediment is public, ought not to be made in the petition to the Datary; but according to many it should be made if the intercourse also were notorious. Some think that recourse must be had to the Penitentiary so that the defect of the dispensation may be supplied because of occult intercourse not expressed in the Datary; but this does not appear necessary. Yet from the words cited no one should persuade himself that, according to Pichler, mention of the intercourse is necessary, at least if it was public. For a little afterward he adds:

If some legitimate cause is alleged, and the intercourse was not had under the said hope (namely, of a more easily obtained dispensation), there is an immense controversy whether intercourse which is not occult must be expressed in an impediment of consanguinity.

To these is added Giribaldi, who (Treatise X, On Matrimony, chapter 18, no. 9), after proposing the question, Must incestuous intercourse perhaps had between relatives by consanguinity and affinity necessarily be expressed when a dispensation is sought for contracting marriage?, replies (no. 58): The first opinion teaches that it must necessarily be expressed, lest the dispensation be subreptitious and lest the marriage afterward contracted be null.... But he adds (no. 59): The second, truer and more probable opinion teaches that intercourse had between relatives by consanguinity and affinity who wish to contract marriage need not necessarily be expressed, and that through this the dispensation is not rendered subreptitious, nor the marriage afterward contracted rendered null. The reason is that incest is not a diriment impediment which by reason of itself needs a dispensation, nor perhaps a prohibitory one, since it has already been abrogated by custom.

Finally, in the Resolutions of Cases of Conscience which on the title page of the volume are said to have been proposed and resolved by command of His Eminence Prosper Lambertini, then Archbishop of Bologna and afterward our Most Holy Lord Pope Benedict XIV, you will find the same doctrine. For after the necessity of expressing the depraved intention in committing incest, namely, to obtain the dispensation more easily, was established there (case 2, September 1740), these things are added: Yet I think this must be understood, first, when the aforesaid intention was manifested, since the Church does not judge internal things; second, when the same intention was reciprocal between those having intercourse, since it is not equitable that the offense of one harm the other; and third, finally, when another sufficient cause of dispensation was not related, since otherwise the obligation of manifesting either the fault or the intention had in the intercourse no longer appears to urge.

It is therefore sufficiently manifest that the theologians and canonists after Innocent XII not only did not hold as certain and established by Pontifical authority the necessity of expressing incest, or the nullity of a dispensation because the same circumstance was kept silent, but that most of them regarded as more probable, truer, and safe the doctrine which denies that necessity.

20. But as regards the third point, namely, that theologians and canonists who discussed this question after the Constitution of Innocent judged that no account was to be taken of it, this can be dispatched briefly. Let anyone who wishes to learn the matter with his own eyes read through the Doctors whom he has cited here. He will certainly see that neither those who teach that incest must be explained in the petition draw an argument for that opinion from the Constitution of Innocent, nor again do those who oppose that opinion have the authority of the Constitution of Innocent objected to them. And you will find altogether the same silence concerning the Constitution of Innocent among the few others who, without making any mention of the opposite opinion, teach that incest must be expressed; such are Billuart (On Laws, dissertation 5, article 3, section 4), Cuniliati (treatise 14, chapter 7, section 29, no. 6), and Catalani (part 3, question 14, chapter 19, no. 13). Moreover, the hypothesis is altogether incredible and manifestly repugnant which imagines, on the one hand, that the controversy was defined by Pontifical authority through a solemn Constitution, but, on the other, that all theologians and canonists, otherwise Catholic and most obedient toward the Apostolic See, took so little account of the Pontifical Constitution and Pontifical oracle that, in treating that controversy, they did not regard it even as worthy of mention, and indeed, while the Apostolic See looked on, some at most held the doctrine supposedly defined as probable, while others openly attacked it.

21. And to this certainly pertain the things which Vincentius De Iustis discusses concerning the same matter (loc. cit., no. 317): Although these Treatises (in which, namely, the necessity of expressing incest is denied) have been printed, circulated everywhere, publicly held and read in the hands of many, and are daily held, maintained, and publicly read, nevertheless this opinion has not until now been condemned by any Constitution publicly and authentically known; whereas, if it were false and erroneous, it must be presumed that it would have been condemned in some manner, so that such condemnation would be publicly and authentically known before Ecclesiastical Tribunals. For there is question of a most grave matter; because if the contrary opinion were certain, from the concealment of intercourse of this kind there would arise invalidity of the dispensation, nullity of the marriage, invalidation of the Sacrament, illegitimacy of the offspring, perpetual concubinage and incest, and consequently innumerable sins, crimes, and most grave scandals.... Therefore, it can and must be presumed that if this opinion were not probable, defensible, and safe, it would have been condemned in some manner by the Church, and in such a manner that its condemnation would everywhere be published legitimately and authentically.

22. Moreover, we said that if, from the unanimous suffrage of the Doctors, nothing concerning the proposed controversy was defined by force of the Constitution of Innocent, a judgment not dissimilar can be made concerning the Constitution of Benedict XIV. For, as is readily evident, it is not lawful to attribute more authority and weight to the Constitution of Benedict than to that of Innocent; and otherwise nothing is declared concerning the present matter in Benedict's Bull which was not declared, and perhaps more effectively, in Innocent's.

But this very thing can be confirmed by an argument not dissimilar to that which we used in drawing out the sense of the Constitution of Innocent, namely, by the testimonies of those who could more conveniently know the sense of Benedict's Bull and disclose it to us. It may indeed have belonged to Blessed Alphonsus, certainly a most learned man but far distant from Rome, to attribute by reasoning such a sense to the words of Benedict's Bull that he could consider the controversy already settled by Benedict. But certainly not so with those who, dwelling at Rome during the very age of Benedict XIV, could learn something better about this matter in the light of that City, and indeed, because of the offices they held, necessarily ought to have known it, and therefore can be more suitable witnesses concerning the sense of Benedict's Constitution. These men, namely, no less than those who wrote before Benedict XIV, we find either asserting the necessity of expressing incest as merely probable or even probably attacking it.

23. First there occurs to us Daniel Concina, who in the year 1751, namely, the ninth year after the Constitution Pastor bonus was issued, at Rome, in a volume whose title page is adorned with the coat of arms of Benedict XIV, proposed to himself this question (On Matrimony, book 2, dissertation 3, chapter 5, no. 17): When a dispensation is sought between relatives by consanguinity or affinity, must the incestuous intercourse had between them be expressed? He appeals neither to the names nor the Bulls of Innocent or Benedict, but replies thus: Authors dispute on both sides concerning this question. Pontius, Henriquez,... to whom Viva is added,... defend the negative opinion.... On the contrary, Sanchez, Diana,... defend that it must be manifested, and testify that the Congregation of Cardinals declared it so.... Others reply that the Congregation of Cardinals declared that the intercourse must be expressed as something safer and more secure, not as something more probable. But these are mere probabilistic inventions and therefore must be rejected; wherefore the latter opinion is MORE PROBABLE.

Father Philip of Carboneano follows, Professor in the College of the Propagation of the Faith, Consultor of the Sacred Congregation of the Index, and Qualificator of the Supreme and Universal Inquisition. And his testimony appears to be all the more weighty because he dedicated to Benedict XIV himself the work in which he professes his opinion concerning this controversy; and the Pontiff so approved the labors of the Friar Minor that he entrusted to him the task of adding also those things which could be useful to Missionaries. What, then, does Father Philip say concerning our question? Namely (appendix I to the treatise On Matrimony, article 1), he establishes first that intercourse must be set forth if it is notorious.

Then he continues thus: I said that the intercourse must be expressed if it is notorious, because if it remained occult, it cannot be presumed that the pious mother Church intends that this be divulged with enormous defamation of oneself...; and in this sense the arguments just adduced must be understood.... But must recourse then be had to the Penitentiary? Pichler and Reiffenstuel deny it, because, they say, incest does not need its own dispensation; and besides, the Penitentiary neither can nor is accustomed to demand any composition, since whatever it issues it issues gratuitously. Several theologians and canonists teach the same.... But Sanchez judges that in this case recourse must be had to the Penitentiary.... M. Paul Leo teaches the same. I think this opinion, as the safer and at least equally probable with the opposite, must be adhered to, and I have known Bishops who adhered to it. From these things it is evident that this writer also, distinguished at that time by reputation and by the offices which he held, however much he adhered more to the opinion establishing the obligation, nevertheless, no differently from Concina, attributed mere probability to it, and did not in the least suspect that this controversy had been defined by force of Benedict's Constitution.

Let Ubaldus Giraldi be the third witness. He was an Examiner of the Roman clergy and published at Rome, ten years after the death of that Pontiff, his celebrated Exposition of Pontifical Law, notably adorned especially with the doctrines of Benedict XIV. Concerning the present question, he judged it useful to bring forward nothing else (see part II, section 122) than what Rhemigius Maschat had written concerning it, whose Canonical Institutions he himself had enriched with his additions. But from the words of this writer adduced above, it is evident that he stood with those denying the obligation of expressing the intercourse if it had remained occult.

From these things someone will sum up the argument thus. It must appear altogether improbable that this was the mind of Benedict XIV; and again it can scarcely be believed that his Constitution Pastor bonus was understood at Rome in such a way as to define the obligation of expressing incest, and yet the aforesaid writers could, in the City itself, while the same Pontiff looked on, and even in writings published at Rome without objection from the Master of the Sacred Apostolic Palace or any other of the Revisers, indeed dedicated to the same Pontiff, and indeed so praised by him that by his command they were used in the schools, dispute in so uncertain a manner concerning a doctrine notoriously, as is supposed, defined by the Pontiff himself, that they either held and maintained it as merely probable or even adhered to the opposite as more probable; while they utterly disregarded, and judged not even worthy of mention, as if it did not exist, the Pontifical Constitution which by its own authority would have put an end to uncertain disputes concerning it. But, as can be gathered from the testimonies brought forward, the aforesaid Authors discussed the proposed argument altogether in this manner in books published at Rome; and the writings of Philip of Carboneano, dedicated by the Author to the Pontiff himself, were deemed worthy, by the will of the same Pontiff, to be taught in the schools of the College of the Propagation of the Faith, and indeed were adopted by command of the Bishops in several Seminaries of Italy. Therefore.

24. And the things which we read in the Lucan Resolutions of cases also impel us to judge thus concerning this Constitution. For when, in July of the year 1743, a question was proposed concerning Caius and Bertha, blood relatives, who had obtained a dispensation without the intercourse being expressed, the reply was: That dispensation is valid, as indeed is probable; for first, that the intercourse must be expressed is nowhere provided in law. Then, the intercourse is not the final cause of dispensing. Next, when a doubt arises, that interpretation must rather be made which sustains the act than that which destroys it.... Moreover, if anyone wishes to adhere to the contrary opinion, a dispensation must be sought from the Sacred Penitentiary (Solutions of the Lucan Conferences, volume 1, page 183, Lucca, 1762).

But perhaps the resolution (ibid., volume 3, page 366) whose Author was John Dominic Mansi in March of the year 1760 bears more upon our matter. For when the same case was proposed, he indeed set aside the opinion of Vincentius De Iustis and adhered to the opposite, citing Pyrrhus Corradus, M. Paul Leo, and also Instruction 87 of Lambertini, afterward Pope Benedict XIV. Nevertheless, he concludes the matter thus: The things hitherto adduced have no place when the dispensation has obtained its desired effect and the marriage has already been contracted. For this he again cites the aforesaid Instruction of Lambertini. Now it is most manifest that the case in which Mansi exempts one from the obligation of seeking a Dispensation again from the Sacred Penitentiary is precisely that in which, according to St. Alphonsus, the Constitution of Benedict XIV would have defined that recourse must be had to the Sacred Penitentiary for a dispensation. Otherwise, since the distinguished Mansi strives to fortify his whole resolution with the doctrines and authority of Benedict XIV, why, in order to strengthen, and indeed to resolve decisively, the first part of the question, does he not turn to the Constitution Pastor bonus, but appeal to Instruction 87 of Lambertini, which is so far from having the force to settle the question that it presents this doctrine fortified by such an array of arguments, as we saw above, that it appears to betray the cause? Indeed, why is it that in the other part of the resolution he goes over to an opinion which, according to St. Alphonsus, the same Lambertini, now Pontiff, had condemned? It must therefore be concluded that, apart from St. Alphonsus, no one had even the slightest suspicion of this definition of Benedict XIV.

And this may be confirmed by the testimony of another anonymous theologian of the Order of Preachers, who in the year 1797 published at Venice, in the Italian language, a work entitled: Decisions of Cases of Conscience and of Canonical Doctrine Made in the Diocese of Bologna by Order and According to the Mind of His Eminence Cardinal Lambertini, and Afterwards Supreme Pontiff. An Edition Corrected Again and Enlarged through the Work of a Dominican Religious, etc. For under the title Consanguinity, case III, he discusses the present question thus (volume 3, page 144): I said that the incest committed must be expressed in the petition if it is notorious; because if it has remained occult, it cannot and ought not to be presumed that the compassionate mother Church intends that such a shameful sin be divulged with most grave infamy of the persons.... But at least in such a case must recourse be had to the Sacred Penitentiary, and the impediment of consanguinity together with the occult incest be manifested to it under fictitious names, in order to seek from it a dispensation in the forum of conscience? Some theologians reply that it must not, because, they say, incest does not need its own dispensation.... But Sanchez is of the opinion that in this case recourse must be had to that Penitentiary.... M. Paul Leo is of the same opinion.... One ought to yield to a man of such experience in matters of this kind and in practice adhere to this opinion, which is safer and at least of equal probability with the contrary, all the more because the continuator of Tournely also testifies that he knew Bishops who adhered to this opinion. At which words it again occurs to ask: Would this theologian have remained hesitating in some uncertainty, and finally undertaken to resolve the question with the sole support of Sanchez and M. Paul Leo, who opined thus, if at least some report or suspicion had spread through the theological schools that a definition of the controversy had already been issued by the most celebrated Constitution of Benedict XIV?

To these must be added the distinguished theologian from the Order of the Servants of the Blessed Virgin Mary, namely, Marcus M. Struggl, all the more because on the very title page of his book he testifies that he hands down Theology according to the canonical and moral doctrine which shines forth in the excellent Works of Benedict XIV happily reigning; indeed, in the Notice to the Reader he expressly professes that he composed his work in all things according to the universal Constitutions of the Supreme Pontiff Benedict XIV which pertain, even reductively, to Moral Theology. And since elsewhere he cites Constitutions of the same Pontiff which are contained in the first volume of the Bullarium published in the year 1746, he certainly knew the Constitution Pastor bonus very well.

He therefore writes thus (treatise 12, question 4, article 2, no. 22): If the marriage has not yet been contracted and the petitioners are relatives by consanguinity or affinity..., then it must be expressed whether carnal intercourse, which, for example, is alleged in the Penitentiary as a cause of dispensation, did not occur under the hope of obtaining the dispensation more easily. But if, on account of a public impediment of consanguinity or affinity, a dispensation is sought from the Datary for other causes, mention must not be made of the carnal intercourse... unless this also was public; as Reiffenstuel teaches with the more common opinion of others (see his opinion above, no. 19). Struggl, therefore, no differently from Reiffenstuel, judged that the depraved intention in having intercourse must indeed be expressed when the intercourse is alleged as a cause of dispensing, and likewise that it must be expressed if it was public; but in other cases, nowhere. And again (ibid., article 4, no. 57), where he teaches that a dispensation is invalid when the petitioners deceitfully do not express some obstacle to the dispensation, he certainly mentions that the petitioners had intercourse under the hope of a future marriage; but concerning mere intercourse had apart from an intention of this kind, not even a word.

25. And this historical exposition of the sense which both theologians and canonists universally attributed to the Constitutions either of Innocent XII or Benedict XIV, for it makes no difference of which one there is question, can suffice for someone to conclude that it must be greatly doubted whether that new interpretation of them which Blessed Alphonsus introduced against the unanimous opinion of all Catholic schools can be regarded as legitimate. It therefore remains to inquire whether it rests upon some solid foundation.

But this in reality resides wholly in these words of his (book 6, no. 1135): Observe that the Pope, by saying, "may grant a revalidation," does not hold as valid marriages contracted with such concealment. This argument, which had never before been drawn from the words of Innocent, must rest upon this general principle: a superior can never delegate any power unless the cause of necessity is altogether certain, in which subjects seek to be aided through the exercise of such delegated power.

But a principle of this kind will easily appear fallacious, and even daily practice convicts it of falsity. For who does not know that recourse to Superiors lies open and is customarily had both when certain laws impose the necessity of this recourse and when the laws appear so uncertain that they leave that necessity also less certain? And since one delegated by a Superior for providing for the necessities of subjects ought to possess power in each hypothesis, what wonder is it if the Superior delegates to him faculties of absolving, dispensing, convalidating, condoning, remitting, relaxing, composing, derogating, revalidating, etc., even when the laws are not so certain as to render altogether necessary the absolution, dispensation, convalidation, condonation, remission, relaxation, composition, derogation, revalidation, etc., which the subjects nevertheless seek?

And to illustrate the matter by some example: some Doctors contend that, on account of incest, excommunication latae sententiae is incurred; others, only excommunication ferendae sententiae; and others that not even excommunication ferendae sententiae is established for this crime. Nevertheless, in the formula of absolution from incest with a dispensation (in M. Paul Leo, Practice of the Office of the Sacred Penitentiary, part 2, page 329), a faculty is given of absolving from censures on account of incest. Shall we therefore conclude that the Pontiff from whom this faculty of absolving comes has already declared or defined that censures are incurred on account of incest?

There are those who judge it probable or even most probable (see above, note to no. 65, question 5) that the Matins of the following day can licitly be recited at the second hour after noon and that the precept is thereby satisfied; others deny this. Suppose now that someone sought and obtained the faculty of reciting Matins at the second hour, which certainly is granted by an inferior only by force of a faculty delegated by the Pontiff. Will you therefore conclude that the Pontiff thereby defined or declared that Matins is recited invalidly if this faculty is absent? But elsewhere (above, page 47, in the note) we reported these words of Suarez: This argument is weak, because many things are granted in privileges, not because they are necessary, but because they are sought either because of fear or scruple, or in order to remove a doubt arising from various opinions. We also transcribed these words from Diana (ibid.): You will say: The Pontiffs grant privileges so that Matins can be recited two hours after noon. Therefore. I reply: those who seek this privilege are a sign that they hold the contrary opinion; and many things are sought from the Pontiff for greater caution and because of scruple; but from these things it does not follow that the cited opinion of the Doctors is not probable, nor that it cannot be followed.

26. Indeed, in this very matter of which there is question, and in the very Constitutions both of Innocent XII (Constitution Romanus Pontifex) and of Benedict XIV (Constitution Pastor bonus), a most luminous example concerning our matter presents itself to us.

And indeed, in the Constitution of Innocent (section 32) these words are contained: In marriages to be contracted, the same Major Penitentiary may, in the forum of conscience only, dispense, or command a dispensation to be granted, FROM OCCULT IMPEDIMENTS which do not render marriage null.

Likewise, in the Constitution Pastor bonus of Benedict XIV (section 39), it is read thus: In marriages to be contracted, the same Major Penitentiary may, in the forum of conscience only, dispense, or command a dispensation to be granted, FROM OCCULT IMPEDIMENTS which do not render marriage null; and likewise from the omission of proclamations, even for the purpose of contracting secretly, etc.

But what, finally, are these occult impediments of marriage, yet not diriment, for relaxing which the faculty is here granted to the Major Penitentiary? St. Alphonsus, who (book 6, no. 1144) in the foregoing section 39 incorrectly read concerning OCCURRING impediments, added: But merely prohibitory impediments of this kind today, as we said above, are reduced to three, namely, a vow, betrothals, and the prohibition of the Church. But that reading is manifestly erroneous, and it must be read, Concerning occult impediments. What, therefore, are these occult, non-diriment impediments? Certainly not a vow, for each Constitution treats below of dispensation from a vow. Not betrothals, because the Apostolic See does not dispense to the prejudice of a third party. Not time, because nuptials are prohibited at no time, but only the solemnities of nuptials are forbidden at certain times; moreover, this is not an occult impediment, just as neither the Catechism nor the prohibition of the Church are occult impediments, of which exclusively there is discussion in the cited texts of the Pontifical Constitutions. It remains, therefore, that in the cited texts the Major Penitentiary is given the faculty of dispensing from those merely prohibitory impediments which elsewhere we said (above, note to no. 776) were comprehended under the name Crime, and the first of which is incest, which Paul Marcus Leo in his Practice of the Sacred Penitentiary (part 2, page 205) designates with these most noteworthy words: Incest with a male or female blood relative of one's spouse or betrothed, from canon 1 and canon Transmissae 4, On Him Who Has Known a Blood Relative of His Wife.

And in fact the same Paul Marcus Leo (loc. cit., page 329) reports the formula of a dispensation from this impediment thus: Title: Absolution from incest with a dispensation for one who has known a mother and daughter and intends to contract marriage WITH AN UNRELATED WOMAN OTHERWISE PROHIBITED TO HIM BY NO LAW; the letters of absolution and dispensation are made as below. Friar Antonius Barberinus, etc. Insofar as it is so, after first hearing his sacramental Confession, absolve the said bearer on this occasion from whatever sentences, censures, and ecclesiastical penalties he has in any manner incurred on account of the foregoing matters, and from incest and excesses of this kind, etc., a salutary penance according to the measure of the fault, and other things, etc., to be imposed upon him on that account, etc.; and with the same bearer, so that, notwithstanding the said incest, he may, with SOME OTHER WOMAN OTHERWISE PROHIBITED TO HIM BY NO LAW, contract marriage in the forum of conscience, with the form of the Tridentine Council observed, mercifully dispense, etc. Leo himself then adds in a Note the reason why a dispensation of this kind is necessary: An incestuous person is prevented from contracting marriage with any person..., and therefore needs a dispensation.

With these things premised, let it now be asked: From the fact that, besides Innocent XII, Benedict XIV also in the Constitution Pastor bonus grants to the Major Penitentiary the faculty of dispensing concerning the aforesaid occult impediment of Incest, does an effective argument arise by which it may indubitably be concluded that an incestuous person is so prohibited from contracting marriage with any other person otherwise prohibited to him by no law that for this purpose a dispensation from an impediment of this kind by the Apostolic See is necessary for him? But was it not shown elsewhere (above, note to no. 776), according to the most common opinion of the Doctors, that the non-diriment impediments both of incest and of the other crimes were removed and became obsolete through desuetude? Did not St. Alphonsus himself, already from his own time (above, no. 4), proclaim: The impediments of incest, etc., TODAY ARE NOT IN FORCE, NOR DO THEY NEED A DISPENSATION? And if these impediments do not need a dispensation, to what purpose is the Major Penitentiary given the faculty of dispensing in the Constitution of Benedict XIV, as though this dispensation were necessary? And if a faculty of dispensing from these impediments is granted by the Pontiff, why do we not conclude by the same argument as St. Alphonsus that those impediments need a dispensation? How, I ask, does this reasoning differ from the foregoing reasoning of St. Alphonsus?

It must therefore be concluded that the principle upon which St. Alphonsus's argument rests is altogether fallacious: that no power is ever delegated by a Superior unless the cause of necessity is certain, in which subjects seek to be aided through the exercise of such power.

27. But the fallacy of this principle and argument can be known nowhere better than from those things which Benedict XIV himself discusses in the one hundred eighty-third of his Canonical Questions.

These matters are most opportune, not only because for knowing the force and sense of the Constitutions both of Innocent XII and of Benedict XIV himself we are permitted in a certain manner to employ him as interpreter, but also because, on account of the similarity of the cause and the arguments, they pertain especially to our matter.

There was question, namely, of those who, joined in the mixed third and fourth degree of consanguinity, had afterward obtained a dispensation upon the fourth, with the third concealed. But after a marriage had thus been contracted and consummated, dissensions arose between the spouses; the invalidity of the dispensation, and therefore the nullity of the marriage, began to be treated, as indeed grave Doctors held, and the controversy was brought before the Sacred Congregation of the Council. But what especially pertains to the present matter must be examined attentively: how and by what arguments the Officials of the Sacred Datary undertook to defend the nullity of the marriage. The distinguished Officials of the Datary (as it is said in the exposition of the Question), having read through the Registers from the time of St. Pius V to the present, drew up a discourse together with a justificatory Summary, and tried once and for all to prove that marriages, etc., had always been held null and invalid.

Of their arguments Benedict XIV, then Secretary of the Sacred Congregation of the Council, reports the last thus in the discourse which he appends (no. 8): The final argument is that whatever the Apostolic Datary does is said to be performed by the Pope himself. And since in the printed Discourse twenty-four examples are adduced by the distinguished Officials of the Datary, from which the nullity of a marriage is shown... when the nearer degree was concealed..., it appears that nothing clearer can be adduced concerning the matter at issue. For how could St. Pius V have granted in letters a declaration of equal validity in the terms of marriage..., how could other Pontiffs have commanded that Ordinaries publicly declare the nullity of the prior marriage and that the spouses contract anew, if the preceding marriage had been held valid? And again, how could the same Roman Pontiffs in other letters have declared equal validity in the terms of a marriage contracted and consummated..., that, with the form of the Council observed, the marriage be contracted anew; that the contracting parties be absolved from incest and from the excommunication imposed in the single Clementine decree On Consanguinity; that the offspring be declared illegitimate; and that, on account of the incest committed, the surviving spouse remain perpetually without hope of marriage, if the marriage contracted had been valid by law?

Who, moreover, does not see that arguments of this kind, which we see the Officials of the Sacred Datary using in this cause, are altogether similar to that argument by which St. Alphonsus afterward deduced the nullity of marriages from the faculty given to the Penitentiary to revalidate them? For it was certainly necessary that a faculty for this be granted to the Officials of the Sacred Datary by the Pontiff so that they could HEAL AND REVALIDATE marriages which in the case were considered void or at least doubtful, and in addition impose a repeated celebration of the marriage and the other things to be imposed according to the style of the Curia; no differently than in our case the Major Penitentiary is given the faculty of revalidating the marriages of which there is question.

28. What, then, did Benedict XIV say to these things? He roundly denied that an argument for the nullity of the marriage could be drawn from them. For (loc. cit., no. 21), after a preliminary protestation of the obedience owed to the style of the Datary, Benedict replies thus to the foregoing argument (no. 26): Finally, it is most clearly recognized that nothing is adduced which directly strikes the controversy now at issue. For in all the examples in which the Supreme Pontiffs

ABSOLVED FROM THE PENALTIES OF INCEST, DECLARED THE OFFSPRING LEGITIMATE, AND PRESCRIBED THE RENEWAL OF CONSENT with the form of the Council observed, the petitioners were supplicating for a dispensation and thus showed themselves ready to remain in the marriage, so that it is not surprising if the Supreme Pontiffs, GRANTING THE REQUESTS IN ABUNDANCE to the same persons supplicating for absolution from censures and for the legitimization of the offspring, both absolved them from censures, declared the offspring legitimate, AND PRESCRIBED THE RENEWAL OF CONSENT.

Benedict XIV therefore concedes that the Curia of the Datary conducted itself in all those things as though the marriages had been void. But he plainly denies the consequence; namely, against the Officials of the Datary, he denies that it follows from those Acts that the marriage was void. But from these things (he says) an argument cannot be drawn toward a declaration of the nullity of the marriage. Why? Because, namely, as he had premised, the Supreme Pontiffs, and therefore the Officials both of the Sacred Datary and of the Sacred Penitentiary, in accordance with the faculties granted to them, both dispense from incest and absolve from penalties and censures, and, with the tax imposed, prescribe the renewal of consent as though the marriage were void. But all these things have place also hypothetically when the petitioners supplicate for obtaining them; and, GRANTING THE REQUESTS IN ABUNDANCE, as Benedict XIV says, they are furnished to those asking, since all these things leave untouched the theoretical question whether they are altogether necessary.

29. Benedict XIV also confirms his intent, which likewise pertains to our matter, by other examples (ibid., no. 27): There can be an example in dispensations which are granted to petitioners as a precaution, or concerning irregularities, or concerning censures. For just as from these dispensations an argument is not valid for the incurrence of an irregularity or censure even in a similar case fortified by all the circumstances which were present in the cases in which the said dispensations were granted, when there is a formal dispute whether the irregularity or censure was incurred; so FROM WORDS OF THE SUPREME PONTIFFS SUPPOSING THE NULLITY OF THE MARRIAGE IN THE HYPOTHESIS in which the petitioners supplicate and are ready to remain in the marriage, AN INFERENCE TO THE POSITIVE NULLITY OF THE MARRIAGE IS NOT VALID.

Thus far Benedict XIV. His reply, as is evident, destroys all force of the argument by which St. Alphonsus wished, from the same premises proposed even in the Constitution of the same Benedict XIV, to infer against him the nullity of marriages. Nor is there perhaps any place here for objecting that Benedict XIV wrote these things before he was elevated to the summit of the Pontificate. For the authority of the writer is not to be weighed here, although, even if it were weighed, indeed it would have its own weight, and no slight one, and ought especially to have it with those who in the present controversy object to us Instruction 87 of the same Benedict XIV; rather, the outcome of the case which the Sacred Congregation decided must be examined. For to the Question: Whether the nullity of the marriage is established, the Sacred Congregation replied: Negatively. Therefore, since the Sacred Congregation finally rendered a judgment for the validity of the marriage, by that very fact it showed by its authority that the reply of Benedict XIV was of invincible force, and, on the contrary, that the argument adduced above, to which the one produced by St. Alphonsus is similar, was of no force, by which the Officials of the Sacred Datary, arguing from the style of the Curia, contended that those marriages must be held invalid.

30. And this Reply of Benedict XIV, plainly invincible from the suffrage of the Sacred Congregation, not only breaks all the force of that argument which St. Alphonsus used, but in the same manner also removes all force from the reason by which the same Benedict XIV in his Instruction 87 wished to prove as we saw above that a dispensation from the impediment of consanguinity is invalid if the preceding incest was concealed in the petition. For he himself sought the argument (above, no. 2) from Apostolic Letters of Dispensation. But can we imagine in these Apostolic Letters anything suited to expressing the invalidity either of the dispensation or of the marriage contracted which does not appear in the arguments alleged above (no. 27) for the same end by the Officials of the Sacred Datary? But Benedict XIV himself, as we have just seen with our own eyes, judged and proclaimed all those arguments altogether ineffective for inferring the nullity of the dispensation or marriage; and the Sacred Congregation plainly ratified his judgment. Therefore, from that Instruction 87 of Benedict no valid support for the conclusion of St. Alphonsus can be drawn, Benedict XIV himself and the Sacred Congregation being judges.

31. It will be useful, however, to append here also the reply which in the same Canonical Question 183 Benedict XIV made to those objecting to the style of the Curia. The other things (he says at no. 20) which were weighed to the contrary regard the style of the Datary; and by the said style some of the aforesaid Authors were induced to maintain the nullity of the marriage.... But speaking of this style, it is marvelous what and what kind of things have been said by other Authors who hold for the validity of the marriage.... Father Sisius, Apostolic Penitentiary in the Sacred Lateran Basilica, says in his manuscript Annotations on the Constitution of Innocent XII concerning the faculties of the Major Penitentiary: To the style of the Curia, however, it is replied that it indeed makes law, but not when it is contrary to the law itself. But the style in the subject matter, that the marriage is null unless the nearer degree is expressed in the dispensation, which style we saw observed in the Datary, does not make law and cannot be observed, because it would be opposed to the same Motu proprio of St. Pius V. Thus Father Sisius. Yet Benedict XIV prefers to his reply this other one (no. 21), namely, that nothing is adduced to the contrary which directly strikes the controversy, which we have already reported above from no. 28, and in reality comes to the same thing, since he denies that the style of the Curia rests upon law.

Nevertheless, could not the reported reply of Father Sisius also be given to those who, after Sanchez, especially urged the style of the Curia to defend the necessity of expressing incestuous intercourse, namely, of holding a dispensation as subreptitious if the preceding incest was concealed? Why could it not also be replied to these Authors that the style of the Curia indeed makes law, but not when it is contrary to the law itself? But if you ask what that law is, the answer is indeed easy. Let that new little reason which Sanchez contrived for proving the necessity of expressing incest, as we saw (no. 6), be banished, plainly as it deserves; and let the most true reason for this practice be recalled, the genuine and certain character of which is presented to us both by the testimony of the Doctors (note to no. 776), by the Declaration of the Sacred Congregation of the Council (ibid.), and by the very style of the Sacred Penitentiary, which appears most clearly in the formulas of Dispensations adduced above (nos. 5 and 26). From these it will manifestly appear that the necessity of expressing incest arose from and was founded upon the fact that incest by the old law presented a non-diriment impediment of marriage, on account of which an incestuous person was prohibited from contracting marriage with any woman otherwise prohibited to him by no law. From this, however, a dispensation was held subreptitious if an incestuous person sought a dispensation from another impediment and kept silent about the incest, because according to the style of the Curia there is the defect of subreption whenever one laboring under a twofold impediment sets forth only one while concealing the other. These things are altogether certain.

Moreover, the matter is confirmed by the unanimous testimony of the Doctors: through contrary custom the non-diriment impediments of crime, and therefore also the impediment of incest, were removed; and this, as we have seen, the Holy Doctor Alphonsus also affirms repeatedly. And if, in order to admit the existence of a custom as true, according to the judgment of St. Alphonsus (book 3, no. 1025), it suffices that some fewer recent Authors testify concerning it, since they can more suitably than the ancients testify concerning a matter which consists in some fact, then a fortiori it must be admitted when the Doctors agree unanimously in testifying to that very thing. But that the Doctors agree unanimously in this was clearly shown in the note to no. 776. Who, moreover, does not know that, according to the opinion of all theologians and canonists, a custom which has flourished through a long series of years and indeed centuries prescribes even against ecclesiastical laws? And if there is prescription by a custom of this kind, does not the custom itself now make law? It is therefore no wonder that St. Alphonsus expressly affirmed that both incest and the remaining non-diriment impediments of crime are no longer in force in such a manner that they do not need a dispensation. Behold, therefore, a sufficiently obvious reason why the reply of Father Sisius adduced by Benedict XIV for his own matter can also pertain to the present matter, and indeed a fortiori. For, as is evident from the exposition of the cause concerning which Benedict XIV treats in Canonical Question 183, there were some Doctors and there were also reasons upon which the style of the Datary rested, which held marriages invalid if, in seeking a dispensation concerning a mixed degree, the nearer degree had been concealed; but no one can now be cited who defends that incest has the character of an impediment to contracting marriage, so settled is the matter, as St. Alphonsus also testifies.

32. Concerning this conclusion, perhaps this one thing could move someone: how does it happen that the Apostolic See granted to the Major Penitentiary a certain special faculty of dispensing and even revalidating marriages where there is an uncertain and perhaps no necessity for a dispensation or revalidation?

To this difficulty it must first be replied that neither this nor any other difficulties can cause facts to be denied when the facts are certainly established. Moreover, did we not see above (nos. 26-27) that in the Constitution Pastor bonus the Major Penitentiary was also granted the faculty both of absolving from censures plainly obsolete and of dispensing from impediments which, even according to the Holy Doctor Alphonsus, do not need a dispensation? But otherwise there is a reason of its own, and a most grave one, why the Apostolic See wills the Office of the Sacred Penitentiary to be fortified with faculties of this kind also. For besides the general reason which can be seen indicated above (no. 26), namely, the necessity of providing for the tranquility of consciences in perhaps doubtful causes, there is another and twofold reason which required this faculty in the Major Penitentiary concerning the present matter.

33. The first is the extreme gravity of the anxiety by which the minds not only of the faithful but also of Confessors are tormented in doubts concerning the validity of marriages. For there is not question of the mere honesty of an act, when tranquility can easily be restored to consciences from that principle that an act must be considered honest whenever no certain law stands against it; but there is question of the validity of an act, namely, a matrimonial contract, which in no manner depends upon the dictate of conscience. But although, even when there is question of the validity of a marriage, if the cause of the doubts concerns impediments of merely ecclesiastical law, anxieties can be met through a doctrine sufficiently received in the schools (see above, no. 789), which exempts one from seeking a dispensation if that which appears to stand in the way of the validity of the marriage is something doubtful or merely probable. Yet no one is ignorant that there are those whose minds can scarcely enjoy any peace unless by means of a dispensation they cast aside every scruple. To this pertain those words of Cardinal Petra (Commentary on Constitution 8 of Gregory XI, no. 13): Setting aside the opinions of the Moral Doctors..., with our Canonists it must more safely be said that one wavering in a doubt of this kind is bound to inform himself and his conscience according to the disposition of the law before he attempts the prohibited act; then either to put aside the scruple altogether according to the judgment of a prudent man, or, if he cannot quiet his wounded conscience, to have recourse to the Holy Apostolic See for a dispensation at least as a precaution, which he will easily obtain, as Fagnanus advises.

34. The second reason resides in the singular condition of this cause or question. Namely, as we pursued at length above (see also the note to no. 776), the genuine origin and legitimate reason which introduced the necessity of expressing incest if one guilty of this crime wished to contract nuptials arose from this: incest, no differently from certain other grave crimes, was punished by the sacred canons with this penalty, that the guilty person was perpetually barred from any nuptials with any person unless he obtained the benefit of a dispensation from the Apostolic See or from the Bishop.

And let it now pass how it happened that, while all the graver theologians and interpreters of the Sacred Canons, as we also indicated elsewhere in the note just cited, clearly show that this penalty was inflicted by the Pontifical Constitutions only upon incest committed with a relative by affinity in the first or second degree, or indeed committed with a blood relative but only when the incestuous persons obstinately and with contempt for ecclesiastical authority persevered in that crime under the appearance of marriage or without such appearance, some persons nevertheless, contrary to the best-known principles of law which command that odious things be restricted and that penalties not be extended beyond the cases clearly expressed in the law, transferred it not only to every properly so-called incest, that is, with a relative by affinity or consanguinity, and even in the fourth degree, but further to less properly so-called incest, namely, with persons joined only by spiritual or legal relationship.

Whatever may be the case concerning this, the aforesaid laws prohibiting nuptials to incestuous persons caused them to need a dispensation for contracting with any person, but to need a twofold dispensation if they wished to contract with a blood relative or a relative by affinity. And from this, as we saw elsewhere in the cited note, arose the most true reason why a dispensation was held subreptitious when the incest was kept silent, namely, because, with two impediments concurring, one was concealed in the petition.

But when contrary custom gradually destroyed the force of the impediment by which an incestuous person was bound through those laws, behold the Doctors already disagreeing about the necessity of expressing incest, and at the same time behold this controversy covered with other darkness by those who inopportunely and unskillfully mixed elements altogether foreign with its foundations set forth above.

Meanwhile, however, what was the Apostolic See to do in a matter which enters daily practice, amid so great a disagreement of the Doctors and especially amid so great a confusion added to the dispute after Sanchez?

35. I said, after Sanchez, because in reality it is owing to Sanchez that this controversy was altogether disturbed and removed from its native condition and its own foundations. For he himself rightly and clearly set forth the genuine state of the controversy when (book 8, disputation 25, nos. 6-7) he reported two opinions, of which one denied and the other affirmed the necessity of expressing incest, but in such a way that the resolution of the controversy depended upon one and the same prior question, namely, whether that law and impediment by which an incestuous person was barred from nuptials without a dispensation was still in force.

But behold, afterward Sanchez, thoroughly disturbing the state of the question, most inopportunely undertook to bring forward a third opinion, which he called more probable (ibid., no. 8). And indeed, while he expressly admits that the aforesaid impediment of incest is no longer in force, you would now conclude that he adjudicates the cause to the authors of the first opinion, which for this reason denies the necessity of expressing that circumstance. Nevertheless, behold, he attributes the stronger position, at least as more probable, to the defenders of the second opinion, and for the reason which they sought from the aforesaid penalties imposed upon an incestuous person by the old law he substitutes the empty little reason above (no. 6), adding the style of the Curia, as though this style of the Curia did not rest upon that old law which he himself proclaims already obsolete by force of custom. And indeed from this we see an opportunity afterward given to writers to hunt out other empty little reasons (see note to no. 776), by which they might provide some foundation for the aforesaid style. Meanwhile, however, as we have already said, what policy did the Apostolic See observe in this confusion of affairs?

36. For even if only the true hinge of the controversy and its true and whole foundation is kept before the eyes - whether the impediment of incest, from which alone comes the true reason for expressing this crime in the petition, is in force, and universally whether those prohibitory impediments imposed upon certain crimes are still in force - Pichler (book 4, title 1, no. 92) will certainly reply that the Doctors commonly contend that all impediments of crime, or those arising from an offense, were removed by universal custom; Reiffenstuel (Moral Theology, treatise 14, distinction 14, question 2, no. 11), that they appear removed by contrary and long-standing custom and are no longer in use; Pirhing (book 4, title 16, no. 12), that today they are altogether removed by long-standing custom; John Dominic Mansi (Moral Theology, book 5, treatise 10, part 4, chapter 15), that the Doctors testify that these impediments of crimes were altogether removed by long-standing custom; Babenstuber (treatise 8, part 7, disputation 3, article 1, no. 5), that all these impediments of crime were abrogated through non-use, as the Authors most commonly teach and the practice of the Churches proves; Cardinal Gotti (On Matrimony, question 8, doubt 2, section 2, no. 11), that several of the aforesaid impediments are no longer in force but were abrogated by contrary custom; and, lest we add others fruitlessly, St. Alphonsus himself (book 6, no. 985) calls this opinion absolutely common. Nevertheless, Fortunatus Veneri in the last century (On Matrimony, question 7, article 1) discusses these impediments as though they were then in force at least in some manner. But Clericatus (On Matrimony, decision 38, no. 35) reports three opinions: the first holds that they are no longer in their force and therefore, as abrogated by use and custom with the Prelates of the Churches knowing and consenting, no longer impede; the second holds that they are even now in their force; but the third, which was Mastrius's, reconciles the two in such a way that the first is true when the impediments are occult, but the latter if they are brought into the contentious forum. The praised Peter Giovine also mentions these opinions (op. cit., section 376, no. 2), adding that the second pleased Cardinal Ursinus, Archbishop of Benevento, afterward Benedict XIII, while the third pleased Lambertini, afterward Benedict XIV.

Likewise, then, if, setting aside this hinge and foundation of the controversy, we seek the opinions of the Doctors concerning the controversy itself, not only, as we have already seen, do some affirm and others deny that this circumstance of incest must be expressed, but in addition it is found that, according to the diversity of opinions, a diverse practice also prevailed. Thus already from his own age Peter Ledesma (On Matrimony, question 56, article 4, conclusion 3) distinguishes where there is or is not a custom of seeking a dispensation even from incest.

John Praepositus (On Matrimony, question 7, doubt 24, no. 227) mentions the custom that this dispensation is not necessary. - And Pirhing (loc. cit.): Those thus impeded commonly enter marriage, without any dispensation sought, with the prelates knowing and seeing. And Giribaldi (On Matrimony, chapter 18, doubt 9, no. 59): It is not always expressed on the advice of learned men, although sometimes it is expressed on the advice of others. And, omitting others, Vincentius De Iustis (loc. cit., no. 343): For this intercourse, as Diana and Trullench weigh, is not always expressed on the advice of learned men, although sometimes it is expressed on the advice of others adhering to the contrary opinion.

37. It will be useful, however, to ask again here: What indeed was the Apostolic See to do amid so great an uncertainty and variety not only of opinions but also of practice? For the Curia, which, as Maschat says (Treatise on Dispensations, section 3, no. 34), does not so easily depart from its ancient formulas, preserves its style, as though, namely, the impediment and penalty of incest were in force, although, as Giraldi observes concerning this (section 714), the impediment appears removed by desuetude, unless in some place such a penalty has been received by use, as he adds with Thesaurus. But the Apostolic See, since it had not yet judged that it should be declared that those impediments had ceased through non-use and by force of contrary custom, nevertheless ought and wished to provide for those who, either on account of a custom perhaps still in force somewhere, or on account of persuasion introduced into them by those who held thus, sought from it a remedy for their conscience. Therefore, most wisely both Innocent XII and Benedict XIV, while defining nothing about this controversy either as to theory or as to practice, nevertheless grant the Major Penitentiary the faculty that, if some think they need a dispensation either for contracting marriage or for convalidating one contracted, he can grant what is sought. And it appears for this reason to have been done that, just as in the Constitution of Benedict XIV, section 43, it is said, if they have recourse to it, because recourse to the Datary also lay open, so in section 41 it is said, if they seek; because it certainly both could and can happen that others, following another opinion, abstain from seeking in the same circumstances.

38. Finally, this does not appear to be passed over concerning practice, namely, that the doctrine commonly handed down concerning impediments which appear to have the character of a penalty can be recalled here also. And if according to that doctrine (see above, note to no. 788, question 2) it can be considered probable that an impediment of crime, even a diriment one, is not incurred by those ignorant of it, then certainly with stronger reason this can be held concerning a merely prohibitory impediment of crime. And since this impediment consists in the penalty inflicted upon the crime of incest, namely, that without a dispensation one must be perpetually deprived of the hope of any marriage; but this penalty, also on account of the confusions introduced into this question, remains almost unknown through desuetude even to most students of Theology; a fortiori it must be considered unknown to the people of the faithful. Therefore, even if this impediment had to be said to be in force, which hypothesis otherwise has no place from the foregoing, scarcely any person could now be found who, on account of ignorance of this impediment, could not and therefore ought not to be held probably excused from it; and who, for this reason, since he would need no dispensation for contracting marriage because of this cause, would validly be dispensed perhaps from another impediment, even if in seeking the dispensation he made no mention of the incest.

39. And concerning these things let what has hitherto been said suffice to this extent, so that no one may be unaware of what the opinions of the Doctors, set forth and weighed in a most simple and historical manner, can contribute toward the resolution of the question proposed. For finally we wish to subject all things to the judgment of those to whom it belongs to pronounce a legitimate and definitive sentence both concerning all other things and concerning this controversy also, which can rightly appear merely disciplinary. And for the same reason we say that it must further be added that account must be taken in this matter also of the Responses of the Sacred Penitentiary, which at one time, as it was given to me to learn from the custodian of the Registry or secret Archive of the Sacred Penitentiary, replied to a certain Bishop who asked that expressing the disputed circumstance in petitions for dispensations was merely safer; but at another time it inclined to the opinion of St. Alphonsus. For whatever it finally judged, we all certainly know that, although even its private Responses to private persons do not have, as is admitted among all theologians and canonists, the force of a definitive sentence, nevertheless, from the consent of all the Doctors, they are, as St. Alphonsus says (book 1, no. 106), of great weight and rightly worthy of obedience. See the Response in appendix IV at the end of this volume.

There is no need to reply to anything in the ten columns which the VV. wrote (pages 817-822) concerning this Note, since they had nothing by which they might in any manner weaken the reasons adduced in the Note. It is permissible to ask this one thing of them: that before they clamor that an end has already been imposed upon this theoretical controversy, they not neglect to weigh attentively the things which the Holy Doctor Alphonsus has (book 6, no. 556), and which we reported above (note to no. 588, page 542).

868. • QUESTION 3. What must be done in a doubt whether a cause falsely alleged was final or impulsive, or whether it was true or false?

Reply. In all these and similar doubts, the dispensation must be regarded as valid. The reason is that in a doubt one must stand for the validity of the act. - St. Ligorius, no. 1133.

QUESTION 4. When the cause of a dispensation ceases, does the dispensation cease, for example, if the offspring to be legitimated by the marriage has died, etc.?

Reply 1. Affirmatively, if the cause ceases before the dispensation is issued or granted by the Bishop or by another to whom it was committed by the Pontiff. - St. Ligorius, no. 1132.

Reply 2. Negatively, if the cause ceases when the dispensation has already been issued and communicated to the petitioners by the delegate, even if it ceases before the celebration of the marriage. The reason is that through the dispensation the impediment has already been removed. - St. Ligorius, ibid. - See volume 1, note to no. 120.

869. • QUESTION 5. What must specifically be set forth when there is question of a marriage to be contracted for the first time?

Reply 1. The impediment for which a dispensation is sought must be expressed in its own proper species, not one for another, not even a greater one for a lesser; for example, consanguinity for affinity. The reason is that in dispensations an argument from the greater to the lesser is not valid, nor does the Superior will to dispense in that of which he is ignorant.

Reply 2. If a dispensation from an impediment arising from illicit intercourse is sought, it must be set forth whether that intercourse was had by one or both under the hope of obtaining the dispensation more easily.

870. • QUESTION 6. What generally must be expressed in a petition for a dispensation concerning a marriage invalidly contracted? Reply. It must be set forth: 1. whether both parties, or only one or the other, entered the marriage in good or bad faith, namely, with knowledge of the impediment; 2. whether under the hope of obtaining the dispensation more easily; 3. whether they consummated the marriage; 4. whether they contracted clandestinely or in the face of the Church, whether after the proclamation of the banns or with these omitted. For a dispensation is customarily obtained more or less easily according to these various circumstances.

Hence, if some persons contracted before a civil magistrate so that a dispensation might thereby be granted to them more easily, this must be expressed, since bad faith was present, which renders a dispensation more difficult to obtain. If they contracted civilly with the intention of not contracting before the Church, this also must be expressed, because they attempted a clandestine marriage. But if they contracted in good faith and with the intention of seeking a dispensation from the Church, this circumstance does not appear absolutely required to be expressed, although it is better not to omit it. - Bouvier.

871. • QUESTION 7. If one who has obtained a dispensation from the impediment of AFFINITY arising from illicit intercourse, for example, with a blood relative of his betrothed, again sins with the same woman before marriage, does he need a new dispensation?

Reply 1. No, if the dispensation has not yet been put into execution by the delegate; because such dispensations take effect not from the day of issue but from the time of execution. - Thus all.

Reply 2. Indeed, no, even if the dispensation has been put into execution. The reason is that the impediment of affinity has already been removed by the dispensation as regards the effect of contracting marriage. - Thus commonly against some.

But if, after the marriage has been contracted, he sins again with the same blood relative of his wife, he is deprived of the right of seeking the debt, because the dispensation according to the style of the Curia was granted for the purpose of contracting marriage, not for sinning more freely.

But he would need a new dispensation if, before the marriage, he sinned with another blood relative of his betrothed, even after the dispensation had been issued, because a new affinity would be contracted.

872. • QUESTION 8. Is a new dispensation required if, after a dispensation has been obtained from the impediment of CONSANGUINITY, incestuous intercourse occurs between the betrothed?

Reply 1. Affirmatively, if the intercourse was had before the execution of the dispensation. Thus from the common interpretation ⁴ and from the style of the Roman Curia requiring a declaration of incest of this kind; for when this is manifested, the Pontiff imposes a greater penance upon the petitioner. It is also confirmed from a Declaration of the Sacred Congregation in the month of May 1634. - St. Ligorius, no. 1141. ⁵

⁴ Concerning these things compare what was said in the preceding Note; from them you will also conclude that this is wrongly attributed to the common interpretation, as the Author says. For besides St. Alphonsus, and anyone else who copied these things from him, where are all those Authors, so that their interpretation can be called common?

But concerning what is said of the style of the Curia, besides those things which you already have noted in the preceding Note and at no. 776, observe what Vincentius De Iustis (On Matrimonial Dispensations, chapter 4, no. 344) skillfully warns with several others: the existence of this style, which requires the expression of incest, still must be proved; and otherwise this style would not induce necessity upon others unless it is written, proved, and confirmed by a special Decision and Declaration of the Pontiff, as the canonists cited by the same De Iustis teach (ibid., no. 345).

⁵ Concerning these Declarations, Vincentius De Iustis writes thus after others (On Matrimonial Dispensations, chapter 4, no. 355): I say first that the asserted Declarations do not prove anything, nor must they be regarded, since they are not authentically established. And it is certainly worthwhile to add those things which he himself subjoins (ibid., no. 362), since he also touches upon that Garcia whom the Author cites a little later: From what has been said, it is inferred that, concerning Declarations of this kind, faith neither can nor ought to be given to Doctors who cite them in their treatises, as Garcia, Friar Leo, Bellarmine, Barbosa, Possevinus, and others commonly do; because unless they are presented authentically, they do not prove and are not to be regarded, especially since the same

Sacred Congregation, through its particular Decrees, by the express mandate and command both of Gregory XV on June 6, 1621, and of Urban VIII on August 2, 1633, so disposes. At that time, when many Declarations were being circulated through the tribunals and were asserted to have been made by the Sacred Congregation, many of which were erroneous, mutilated, and altered, the Sacred Congregation, by the express order of the said Most Holy Lord Urban, commanded and expressly prescribed that no faith in judgment or outside it was to be given by anyone to Declarations of this kind, printed, to be printed, or manuscript. Vincentius De Iustis reports this command of the Sacred Congregation issued by order of Urban VIII (ibid., no. 363).

Jerome Nicolius had previously written thus concerning the same matter (Theory and Practice of Both Laws, etc., part 2, book 5, title 39, page 319): On April 27, 1721, the Most Illustrious Fathers of the Sacred Congregation of the Council decreed that all and every collection of declarations, decisions, or interpretations of the same Congregation of the Council of Trent, whether printed or to be printed, must be added to the Index of prohibited books; both because they are for the most part false, and because they are diverse and very much beneath the gravity of the style of the same Sacred Congregation, and therefore not worthy of this Sacred Tribunal. Gregory XV of holy memory approved this.

Nor let anyone ask us here why, then, in the note to no. 776, we also did not hesitate to employ one of these Declarations for our matter. We shall reply that it was not unknown to us that it also was taken from the catalogue of Declarations which Rebellus, in a most unfortunate work worthy of no price and no trust, collected up to no. 166 at the end of book IV, part II. But it could readily be admitted for a twofold reason. First, because at least in some part it presented the doctrine then unanimously received in the schools and founded upon certain laws. Then, because, since it was also adduced by Pyrrhus Corradus, it was most suited to removing those things which he had attempted altogether ineptly and most wretchedly concerning this question.

But the Declaration which the Author borrowed from St. Alphonsus was taken from Pittonius, namely, an Author who stands out singularly among writers who heap together and patch together Declarations of this kind with no selection and judgment, and whose collections therefore can be of no use.

Reply 2. Negatively, however, if the intercourse was had after the execution of the dispensation. The reason is that, once the dispensation has been granted and therefore the prohibition of marriage removed, the malice of incest also ceases. - This is also established from the same Sacred Congregation.

873. • QUESTION 9. Is a new dispensation required for blood relatives if, after a dispensation has been obtained, intercourse is repeated by them?

Reply. No, because the incest is morally the same, nor must the number of acts of intercourse be declared, as was just said. Hence a new act of intercourse does not invalidate the dispensation, whether it occurs before its issue or afterward, just as was resolved above concerning the similar case at no. 871; for there is parity of reason.

874. • QUESTION 10. If someone seeks a second dispensation in the same matter after another was previously obtained, ought he to express the first?

Reply 1. Affirmatively, if the impediment contracted arose from some crime. The reason is that relapse into the same crime draws the Superior back from dispensing.

1062. 2° Species of causes. (A) Some causes of dispensations are final, or determining by themselves, but others are impelling or impulsive: the former are the reasons why a dispensation is granted, and of themselves suffice that it be granted; the latter are reasons which move the one dispensing so that he may more easily dispense, but of themselves do not suffice for obtaining a dispensation. - Sometimes one cause taken separately is insufficient, but joined to another or to several others is judged sufficient; for things which do not profit singly, help when many.

(B) Some are defaming, which arise from a delict or injure the reputation of the petitioners; others are honorable, which imply neither delict nor defamation. Dispensation is more easily made from defaming causes than from others, on account of the necessity of averting grave evil.

(C) Certain causes are called canonical, because from the style of the Roman Curia they are accustomed to be admitted as having force and efficacy; others non-canonical, whose efficacy is not explicitly admitted. The former especially must be set forth in the supplicatory petition, but others can be added to them, so that the dispensation may be granted more easily; all the more because the Supreme Pontiff can, in a particular case, admit any rational cause approved by him¹.

¹ Thus the Dataria, Formulae reformatae, ap. Act. S. Sedis, l. c.

1063. II. Principal causes of dispensations. The Dataria formerly admitted only four; but in the Reformed Formulas² twenty-eight are enumerated:

² Ap. Acta S. Sedis, XXXIV, p. 34-35.

Narrowness of place; narrowness of places³; narrowness with the clause: and if outside, the dowry would not be competent⁴; incompetence of the dowry of the female petitioner; dowry with increase⁵, for the undowered woman; when another increases the dowry; on account of enmities (to be avoided); for the confirmation of peace, and on account of treaties between Princes and Kingdoms; on account of lawsuits concerning succession to goods; on account of a dowry involved in lawsuits; on account of lawsuits concerning matters of great moment; for a female petitioner burdened with children, or bereft of parents; for a female petitioner exceeding the twenty-fourth year of age; on account of the difficulty of men going to the place, for contracting with inhabitants of the place; on account of the small number of men, for example by reason of war; on account of the Catholic religion of the contracting party being placed in safety, and the danger of a mixed marriage; on account of the hope of conversion of the other party to the Catholic religion; that goods may be preserved in the family; for the preservation of an illustrious family; for the preservation of the royal stock; on account of excellence of merits; on account of preserving the honor of familiars; on account of infamy and scandal; on account of intercourse; on account of abduction; on account of civil marriage; on account of marriage before a Protestant minister; on account of a marriage nullly contracted; from certain rational causes, namely on account of a more abundant composition in degrees somewhat remote; or in more remote degrees on account of a cause of public good moving the mind of the Pontiff; from certain special rational causes, moving the minds of the Petitioners and set forth to His Holiness, namely on account of intercourse or dishonorable acts, which, on account of the honor of the Petitioners, their quality having been considered, it is not expedient to explain.

³ That is, both of the place of origin and of the place of domicile.

⁴ That is, if she were forced to marry outside the place of domicile, the dowry which she has would not be competent or sufficient.

⁵ Namely, the male petitioner intends to increase the insufficient dowry of the female petitioner.

1064. The S. Penitentiary and the other Congregations have already for a long time admitted many canonical reasons, but especially sixteen, which the Instruction of the S. C. de Prop. Fide¹, May 9, 1877, enumerates thus:

¹ Ap. Collect. P. F., n. 1482; Gasparri, n. 333 sq. - These causes do not substantially differ from those which the Dataria recently admitted, and therefore the explanations which we add hold good for each.

"1° Narrowness of place, whether absolute or relative (only by reason of the female petitioner), namely when in the place of origin or even of domicile the kinship of the woman has been so propagated that she cannot find another of equal condition whom she may marry, unless a blood relative or affine; but to leave the fatherland would be hard for her."

Concerning this we observe: according to the S. Congreg. of the Council, December 16, 1876, narrowness of place is not to be taken from the number of hearths of each parish, but from the number of hearths of the whole city or town, or of places which are not distant more than a mile (1500 meters); and, according to the Dataria, August 30, 1847, a place is called narrow when it does not exceed three hundred hearths, that is, about one thousand five hundred inhabitants, heretics, schismatics, and infidels being removed, but not the impious and unbelievers. - The reason why a dispensation is granted is because otherwise the female petitioner would have either to remain unmarried, or to marry a man of unequal condition, or to depart from the fatherland; these three are grave inconveniences. That the cause may be true, the female petitioner must be of an honorable family; otherwise she could find a man of equal condition. The cause is considered present, even if previously certain young men of equal condition had asked for her as wife, provided none can now be found.

1065. "2° The over-adult age of the woman, namely if, having already passed the twenty-fourth year of age, she has not found a man of equal condition whom she can marry. But this cause by no means favors a widow who desires to fly to other nuptials."

A man of equal condition is said, that is, equal in birth, wealth, character, and not unequal in age, religion, or morals, who is acceptable to the woman and her parents. - For the validity of the dispensation it is enough that there be certainty concerning over-adult age, nor is it necessary, in the verification of the cause, to inquire and prove that the woman up to that age did not find a man of equal condition².

² Thus the S. Penitentiary, April 5, 1902, ap. Acta S. Sedis, XXXV, 44.

1066. "3° Deficiency or incompetence of dowry, namely if the woman does not actually have so great a dowry that she can marry, in her own place in which she dwells, an outsider of equal condition, namely one who is neither blood relative nor affine. This cause urges more if the woman is altogether undowered, and a blood relative or affine is prepared to marry her; or even is prepared suitably to dower her entirely."

This reason exists even if the female petitioner is going to have a dowry after the death of her parents, provided these are unwilling or unable to dower her now; indeed even if there is certain hope that someone wishes to dower her, if the female petitioner does not have the right of forcing him to this; or even when she has already renounced the dowry, provided she did not do this for obtaining the dispensation.

"4° Lawsuits concerning succession to goods already arisen, or a grave or imminent danger of the same. If a woman sustains a grave lawsuit concerning succession to goods of great moment, and there is no other who would take upon himself a lawsuit of this kind and prosecute it at his own expense, besides him who desires to take her as wife, a dispensation is usually granted; for it is of interest to the commonwealth that lawsuits be extinguished. - Hence another cause closely approaches, namely a dowry involved in lawsuits, when, that is, the woman is destitute of another man by whose aid she may be able to recover her goods. But a cause of this kind suffices only for the more remote degrees."

"5° Poverty of a widow, who is burdened with numerous offspring, and a man promises to support her. But sometimes by the remedy of dispensation assistance is given to a widow only for this cause, that she is younger and is in danger of incontinence."

1067. "6° The good of peace, under which name come not only treaties between Kingdoms and Princes, but also the extinction of grave enmities, quarrels, and civil hatreds. This cause is adduced either for extinguishing grave enmities which have arisen between the blood relatives or affines of the contracting parties, and which would be entirely settled by the celebration of the marriage, or when grave enmities have prevailed between the blood relatives and affines of the contracting parties, and although peace has already been entered into between them, nevertheless the celebration of the marriage would be of the greatest service for the confirmation of that peace."

This cause is that which is called by the Dataria "on account of enmities," and supposes two things: that the enmities have arisen from some other source than from the cause of the marriage, and that there is a founded hope of extinguishing them by the desired nuptials.

1068. "7° Excessive, suspect, dangerous familiarity, and also cohabitation under the same roof, which cannot easily be prevented."

The reason for this is that scandal may be avoided; hence it is necessary that the familiarity or cohabitation have given origin to a suspicion concerning foul carnal commerce. To this cause can be referred other things which likewise may be able to furnish scandal, such as disordered love and danger of life, when the parents of the girl threaten death to a man unless he marry her whom they suspect him to have known carnally.

"8° Intercourse previously had with a blood relative or affine or another person laboring under an impediment, and pregnancy, and therefore the legitimation of offspring, namely that provision may be made for the good of the offspring itself and for the honor of the woman, who otherwise would remain unmarried. This indeed is one of the more urgent causes, on account of which dispensation is usually given even to common people."

Since this cause is admitted on account of avoiding scandals, the intercourse must be notorious or about to be divulged very soon. If it is occult, it can be alleged for confirming the danger of incontinence or of scandal. - Formerly the clause was added: provided the intercourse was not perpetrated under hope of an easier dispensation; but this was removed by decree of the Holy Office¹, June 25, 1885.

¹ Ap. Collect. P. F., n. 1246.

"9° Infamy of the woman arising from the suspicion that she, too familiar with her blood relative or affine, has been known by him, even if the suspicion is false, namely when, unless the marriage is contracted, the woman would remain gravely defamed or unmarried, or would have to marry a man of unequal condition, or grave damages would arise."

"10° Revalidation of a marriage which has been contracted in good faith and publicly, with the Tridentine form preserved: because its dissolution can scarcely be made without public scandal and grave damage especially to the woman, cap. 7 de consanguin. But if the spouses entered nuptials in bad faith, they by no means merit the grace of dispensation, as the Council of Trent disposes, sess. XXIV, cap. 5 de Ref. Matr."

Today, however, this last restriction is no longer in force, and, in order to avoid worse evils, dispensation is given even in the case of bad faith on the part of both parties, especially if offspring has already been born, or a civil marriage contracted.

1069. "11° Danger of celebrating a mixed marriage or one before a non-Catholic minister. When there is danger that those wishing to contract marriage in some degree, even one of the greater degrees, because of the denial of dispensation, would approach a non-Catholic minister for celebrating the nuptials, with contempt for the authority of the Church, a just cause of dispensing is found; because there is present not only a very grave scandal of the faithful, but also fear of perversion and defection from the faith in those so acting and contemning the impediments of marriage, especially in regions where heresies rage with impunity... The same must be said concerning the danger that the Catholic party should dare to celebrate marriage with a non-Catholic."

"12° Danger of incestuous concubinage..., lest someone become filthy in concubinage with public scandal and evident peril of eternal salvation..."

"13° Danger of civil marriage. From what has been said it follows that the probable danger that those who seek dispensation, if it is not obtained, are going to celebrate only a civil marriage, as they say, is a legitimate cause of dispensing."

"14° Removal of grave scandals."

"15° Cessation of public concubinage."

"16° Excellence of merits, when someone has deserved exceedingly well of religion, either by battle against the enemies of the Catholic faith, or by liberality toward the Church, or by doctrine, virtue, or in some other way."

1070. There are also other causes on account of which the S. Penitentiary and the S. C. de Prop. Fide grant dispensations, e.g., if the nuptials bring a special utility, such as immunity from military service; or between the petitioners there is a special equality of condition and disposition; or the male petitioner is present at Rome and has made sacramental confession there; or the spouses, ignorant of the impediment, have prepared all things for the nuptials; or through the marriage an illustrious family is preserved; or the parents greatly desire the nuptials. But the Penitentiary does not admit for the external forum the cause without cause, or a more abundant alms, but then refers the petitioners to the competent Congregation.

1071. Corollary. The cause on account of which a dispensation is given must be true at the time when the dispensation is fulminated, or is committed to execution; otherwise it would be granted without cause, and consequently illicitly and invalidly.

(a) But since today Papal dispensations are given only in commissory form, strictly speaking it is not necessary that the cause of dispensation be true¹ at the time when the Supreme Pontiff grants the letters of dispensation, but only at the time of execution; for the Supreme Pontiff does not weigh the truth of the causes, nor does he properly dispense, but constitutes the executor (the Bishop, or confessor) as judge, that he may see whether the causes are true, and, once the truth of the causes has been posited, fulminate the dispensation¹. - But if the dispensation is granted in gracious form by the Bishop, the cause must be true also at the time of the concession.

¹ Bad faith, however, being excluded, as will be said below.

¹ Thus Santi, lib. IV, Append., n. 34, after Pyr. Corradum, lib. VII, c. 6, n. 25.

(b) Nor is it required, according to the common and safe opinion, that the cause be true at the time when the marriage is celebrated; e.g., if a woman who obtained a dispensation on account of incompetence of dowry, after the dispensation has been fulminated and before the marriage, has become rich, she contracts validly; for the impediment, already removed by dispensation, does not revive.

1085. Preliminary notes. One must carefully distinguish between dispensations in gracious form and in commissory form: (a) the former are already granted by the Superior, and therefore are valid without fulmination; it suffices that the dispensation be made known to the petitioners and that the clauses be observed; (b) the latter have not yet been granted, but contain only the faculty of dispensing, so that they are not valid unless first they are fulminated by the executor, after previous information concerning the truth of the petitions and the clauses having been observed.

1086. 1° On a dispensation granted by the Holy See. Today this is always granted in commissory form.

(A) "Dispensations concerning public impediments committed to the Ordinary of the petitioners are to be executed by the Ordinary who gave the testimonial letters or transmitted the petitions to the Apostolic See, even if the spouses, at the time when the dispensation is to be given to execution, having left the domicile or quasi-domicile of that diocese, have departed into another diocese, not to return any more, yet the Ordinary of the place in which they wish to contract marriage having been informed."¹ These things, however, must be observed:

¹ Can. 1055. - Cf. can. 198.

(a) A fulmination made before the original rescript has been received would be invalid, even if by another way it were certainly known that the dispensation had been granted; whence, if this becomes known by telegraph, the same cannot be used validly and licitly, unless the telegraphic notice has been transmitted officially by the authority of the Holy See². Therefore, after the authentic document has been received, a new execution of the dispensation is necessary; if the marriage has already been contracted, it must be revalidated.

² Code, c. 53: "The executor of a rescript invalidly performs his office before he has received the letters and recognized their authenticity and integrity, unless previous notice of the same has been transmitted to him by the authority of the one rescripting."

(b) The rescript must be recognized as genuine and authentic.

(c) Afterward it must be investigated whether the petitions rest upon truth, since one of the clauses is "if the things set forth are true." The Ordinary, however, can delegate another, generally the pastor, to carry out this investigation. A judicial form is not required, unless this is expressly prescribed in the rescript, or there is a contradictor; but the investigation can be completed from authentic acts, witnesses, reputation, or examination of the parties.

(d) The executor must attentively read all the clauses inserted in the rescript, and take care that they are faithfully fulfilled. "Clauses which likewise pertain to the substance of the dispensation are expressed in the Formulas by the conditional particle if, or another similar one."³ The same must be said of the particles provided that, after, not otherwise, if not in another way, otherwise let it be void; or of conditions expressed through the ablative absolute, unless nevertheless it is clear from elsewhere, from the very nature of the matter or from the style of the Curia, that these are required only for liceity.

³ Dataria, Acta S. Sedis, XXXIV, 34.

(e) The fulmination of the dispensation must be made in writing, certainly for liceity, probably also for validity. The Ordinary, namely, must declare that he, having received the rescript, has verified the truth of the petitions, and by apostolic authority dispenses concerning such impediment, so that the spouses may be able to contract validly and licitly, and legitimates offspring received (adulterine offspring excepted) and to be received; then he signs his name. The dispensation is valid at that moment at which the decree is signed, with the acceptance of the petitioners acceding, whether explicit or implicit. - Besides, if the spouses perhaps have incurred censures, let them be absolved from them before they are dispensed, for each forum, and this for validity if it is a question of those bound by a censure through a condemnatory or declaratory sentence. (Can. 2265, 2275, 2283.)

¹ Normae peculiares, c. III, n. 6; Codex, c. 36, § 2.

(f) Finally, the dispensation is carefully preserved in the diocesan archives, and its fulmination is transmitted to the pastor of the petitioners, who makes this known to them and notes in the registers the acceptance of the dispensation².

² Code, cc. 1046, 1103.

1087. (B) When a dispensation is granted by the S. Penitentiary for the internal forum, it is transmitted for execution "to a discreet man, a confessor from those approved by the Ordinary." Those things which were said above concerning the reception and recognition of the rescript, and also concerning the clauses, must be observed; but besides:

(a) Generally the Penitentiary prescribes that the dispensation be fulminated in the very act of confession, "his confession having first been heard," or "only in the act of confession"; if this clause is absent, it can be fulminated even outside confession. This or a similar formula can be employed: "By Apostolic authority specially delegated to me³, I dispense with you concerning the impediment (e.g., of crime from adultery and spouse-murder), so that, the aforesaid impediment notwithstanding, you may be able to contract marriage validly and licitly, and by the same authority I declare offspring received and to be received legitimate."

³ Code, c. 1057.

(b) The fulmination of the dispensation is completed by living voice; nevertheless the confessor can read the written formula; but he must not hand over the authentic document to the penitent, but must tear it up or burn it, at least within three days, under penalty of excommunication latae sententiae.

(c) The investigation concerning the truth of the petitions is required only for liceity: since the penitents themselves must be believed, unless the confessor knows the contrary from elsewhere, by extra-sacramental knowledge.

(d) If the impediment affects only one party, as a vow, or is culpable in only one party, as crime, it suffices to fulminate the dispensation upon that party. But if it is common to both, and each spouse is guilty and conscious of the crime, the fulmination must be made upon each, either by the same confessor or by a different one; in the latter case, the first confessor, after the dispensation has been granted to one, hands over the rescript to the same, that it may be given to the other party: but the latter will present the rescript to his own confessor, who, after the dispensation has been fulminated, will destroy it.

(e) If a double dispensation is necessary, one for a public impediment, the other for an occult one, first that which regards the public impediment must be fulminated.

1088. 2° On a dispensation granted by the Bishop. (A) If it is a question of a public impediment, generally the dispensation is granted in gracious form, and therefore is fulminated by the Bishop or diocesan official; whence the marriage would already be valid from the time of the concession, even if knowledge of it had not reached the ears of the pastor; but it is illicit to contract before notice has been received, lest perchance they contract invalidly before fulmination. If the matter were altogether urgent, notice of the fulmination could be sent telegraphically. - But once the authentic instrument has been received, the pastor makes it known to the spouses, and inserts and preserves it in the Register of marriages.

The Bishop can, however, use faculties which are communicable in commissory form: then the pastor himself is bound to fulminate the dispensation, as is done in Pontifical dispensations.

(B) When it is a question of an occult impediment, generally the Bishop dispenses in commissory form, whenever he can subdelegate: in which case the dispensation must be fulminated by the confessor himself, with the clauses carefully observed. If the question is about impediments for which the Bishop cannot subdelegate an ordinary confessor, he must dispense in gracious form, and therefore fulminate the dispensation; then the confessor, having received the instrument, has nothing further to do except make it known to the parties and commit the clauses to execution. - But the instrument is to be destroyed, as above.

II. On the Principal Clauses Annexed to Dispensations.

1089. That clauses of this kind may be more easily observed, it is helpful to explain them briefly.

1° "Absolving each of them from any ecclesiastical censures whatsoever for the effect of obtaining the present things"; by these words the petitioners are absolved from censures perhaps contracted, but only so that they may validly receive the dispensation; whence they need another absolution so that, for other effects, they may be truly immune from censures.

2° "If the things set forth are true"¹; according to the declaration of the Dataria, this clause "is referred, as regards validity, to the persons to be dispensed, to the impediment to be dispensed, to the motive cause of the dispensation, to the various clauses, to other things which might perhaps obstruct the marriage."¹

¹ Formerly this clause was added: "If through the same information you have found that the petitions rest upon truth," and therefore the dispensation was invalid if no information was made, even if the petitions rested upon truth; today, however, from the decree of the Holy Office, August 28, 1888, there is added only "If the things set forth are true," and therefore the dispensation is valid even without any information, provided the things set forth are true.

¹ Apud Acta S. Sedis, XXXIV, p. 83.

3° "You shall have presumed in no way to demand anything of gift or reward or to receive what is offered"; or "of dispensing gratis"; that is, let no money, no gift be received, except the tax of the chancery, the composition or alms, and the expenses of the agent.

4° "Decreeing the offspring received legitimate." Hence, if perhaps the dispensation cannot obtain its effect on account of the supervening death of one of the Petitioners, nevertheless the power of legitimating offspring will have force. Wherefore the dispensation and legitimation must be expressed in the decree of the Ordinary; if this has been omitted, legitimation of this kind can be made by another decree. The offspring is decreed legitimate simply, and therefore as regards all the effects of legitimation. - It is also said: "Decreeing offspring received, if there is any, and insofar as there is need, legitimate." If indeed the marriage is invalid but contracted ignorantly, publicly, and in legitimate form, legitimation would not be necessary; whence it is done as a precaution, to remove the murmuring of the ignorant².

² Ibid., p. 82.

5° "Scandal being removed, insofar as it is present, especially through separation for a time well seen by you, if it can be done." Scandal indeed must be removed, and often the separation of the spouses must be preferred to other ways; nevertheless the manner of repairing the scandal is left to the prudent judgment of the Ordinary³.

³ Thus the S. Penitentiary, April 12, 1889, ap. Acta S. Sedis, XXVI, p. 509.

6° "A grave salutary penance having been imposed upon them according to the measure of the fault, at your judgment." This penance is distinct from sacramental penance and must be grave, e.g., confession once a month for six months, recitation of the rosary twice or three times in a week for three months, performing the way of the cross once a week for four months; if a grave and long-lasting one is enjoined, it must be carried out for at least one year; if a most grave and perpetual one, even until death. Besides, the S. Penitentiary declared, April 8, 1890, that "neither the limits of severity nor of humanity are to be exceeded, and account must be taken of condition, age, infirmity, office, sex, etc."⁴ It likewise rescripted, December 14, 1891, that the omission of a penance imposed for dispensations does not render them invalid⁵; indeed, that they are not invalidated even if the penance was accepted with the intention of not fulfilling it⁶.

⁴ Ap. Acta S. Sedis, XXVI, p. 510.

⁵ Ibid., XXXI, p. 556.

⁶ Ibid., XXXI, p. 557.

7° "Some alms having been disbursed by them, to be taxed by the judgment of the Ordinary himself." The observance of this clause is not required for validity¹. Nor is it necessary, for liceity, that the alms be disbursed before the fulmination of the dispensation, but it suffices that the spouses promise to give it; indeed, if they are poor, or are unwilling to pay anything, this can be omitted, according to the prudence of the Ordinary.

¹ S. Penit., June 10, 1876, Acta S. Sedis, XXVI, p. 514.

8° "His or their confession having first been heard." This condition is satisfied through confession, even sacrilegious confession, provided it is sacramental. If it is foreseen that one of the parties is unwilling to confess, this should be stated in the supplicatory libellus, so that this clause may not be inserted.

861. The Council of Trent²⁵⁹ established: "In contracting marriages, either no dispensation at all is to be given, or it is to be given rarely, and that for a cause and gratuitously." In other words: for a licit dispensation a just cause is always required; but for a valid dispensation from impediments of ecclesiastical law the supreme legislator, namely, the Supreme Pontiff, does not indeed need a cause, since he is above the whole ecclesiastical law, but in fact he is not judged to dispense when a cause is lacking. All others inferior to the Supreme Pontiff, however, dispense neither licitly nor validly without a just cause. The reason is that the Pope does not delegate this faculty of dispensing unless it is exercised prudently and for a reasonable cause. If, however, the one dispensing thinks that a true cause is present which is in fact absent because of error or even because of deceit, the dispensation is not thereby invalidated, as will be said below. But in doubt concerning the sufficiency of the cause, a valid dispensation is licitly sought and granted.²⁶⁰

Kinds of causes.

a) Final causes (motive causes) are those which suffice by themselves for obtaining a dispensation. Impelling causes (impulsive causes) are those which by themselves alone do not suffice for obtaining a dispensation, but nevertheless assist toward this effect. Hence, if one final cause and several impelling causes are adduced, a dispensation is obtained more easily than if the final cause alone is present.

b) Defaming causes (dishonorable, shameful causes) are those which arise from an offense and are wont to produce infamy. Honorable causes have the mark neither of an offense nor of infamy. Since great harm can easily arise from defaming causes, for example, from illicit intercourse, unless a dispensation for entering matrimony is granted, those causes are wont to be very efficacious for obtaining a dispensation.

c) Canonical causes are those which in law or according to the style of the Roman Curia are held to be final and sufficient. Non-canonical causes, which are also called reasonable or certain causes, are those which by themselves alone do not suffice for obtaining a dispensation; wherefore, if a dispensation is nevertheless granted because of them alone, it is said to be granted "without a cause," that is, without a canonical cause. Canonical causes are the same as final causes, while non-canonical causes are equivalent to impulsive causes.

²⁵⁹ Sess. 24, c. 5, De reform. matrim.

²⁶⁰ Code of Canon Law, can. 84, § 2.

862. The following sixteen canonical causes for dispensing are enumerated in the Instruction of the Sacred Congregation for the Propagation of the Faith of May 9, 1877:

1. "Narrowness of place, whether absolute or relative (by reason only of the female petitioner), namely, when in the place of origin or even of domicile the woman's kindred is so widely spread that she cannot find another man of equal condition whom she may marry unless he is a blood relative or relative by affinity, while it would be hard for her to leave her native country."

Narrowness of place is judged absolute if there are not more than 300 households or 1,500 inhabitants there, though not merely in the parish,²⁶¹ and the distance from the nearest place is more than a mile, that is, 1,500 meters.²⁶² If the place of the bridegroom is the same as, or equally narrow as, the place of the bride, this can then usefully be stated in the petition in this manner: "the narrowness of the place in which the petitioners were born," or "have their domicile"; or: "the narrowness of the places where the petitioners...." Narrowness of place is relative if there are indeed more than 1,500 Catholic inhabitants in the place of domicile, but the woman's kindred is so widely spread that she cannot find another husband of equal condition. It must be noted that heretics perhaps staying in a place are not counted in the computation of its inhabitants; impious and unbelieving Catholics, however, must be counted.

2. "The advanced age of the woman, namely, if, having already passed the twenty-fourth year of age, she has thus far not found a man of equal condition whom she can marry. This cause, however, does not favor a widow who desires to pass to other nuptials."

It is no longer required that an investigation be made as to whether the woman has thus far been unable to find a man of equal condition, but the age of twenty-four completed years by itself alone suffices. For to the question, "Whether in the verification of the cause, namely, the advanced age of the female petitioner, it is also necessary to inquire into and prove that up to that age the older woman had not found a man of equal condition whom she could marry, and this for the validity of the dispensation?" the Sacred Penitentiary responded on April 5, 1902: "It is enough that the advanced age be certainly established."²⁶³

3. "Deficiency or inadequacy of dowry, namely, if the woman does not actually have so great a dowry that she can marry an unrelated man of equal condition, who is neither a blood relative nor a relative by affinity, in the place in which she is staying. This cause is more urgent if the woman is entirely without a dowry and a blood relative or relative by affinity is prepared to take her as wife, or even suitably to provide her with a complete dowry."

The name of dowry is not to be understood in the strict juridical sense, but as that fortune which is actually brought by the wife into the matrimony to sustain its burdens. Consequently, a woman who after the death of her parents will have a sufficient fortune, but who at present, upon contracting matrimony, receives either nothing or little from her parents, is without a dowry, or at least her dowry is inadequate. This cause for dispensation can often occur in the case of a bride whose parents indeed have high rank but a moderate fortune.

4. "Lawsuits concerning succession to goods which have already arisen, or grave or imminent danger of them. If the woman is sustaining a grave lawsuit over succession to goods of great importance, and there is no one other than the man who wishes to take her as wife who will undertake such a lawsuit and prosecute it at his own expense, a dispensation is wont to be granted; for it is in the interest of the commonwealth that lawsuits be extinguished. Another cause closely approaches this one, namely, a dowry involved in lawsuits, when the woman is deprived of another man by whose aid she can recover her goods. Such a cause, however, suffices only for the more remote degrees."

²⁶¹ Pius IX, August 30, 1847.

²⁶² Sacred Congregation of the Council, December 16, 1876, and March 8, 1884; cf. Sacred Congregation of the Council, August 24, 1907.

²⁶³ Collectan. de Prop. Fide, n. 2134.

863. 5. "The poverty of a widow who is burdened with numerous offspring and whom a man promises to support. But sometimes by the remedy of a dispensation a widow is assisted for the sole reason that she is younger and is in danger of incontinence."

In this canonical cause two motives are included: a) the burden incumbent upon the widow from her offspring, and b) youth and the danger of incontinence. Both motives are most readily present if a younger widow has children not yet grown, at least three or four; for not only bodily nourishment is necessary for the offspring, but also, and indeed principally, spiritual education, which is most difficult if the mother is deprived of the efficacious aid of a husband.

6. "The good of peace, under which name come not only treaties between kingdoms and princes, but also the extinguishing of grave enmities, quarrels, and civil hatreds. This cause is adduced either for extinguishing grave enmities which have arisen among the blood relatives or relatives by affinity of the contracting parties and which would be wholly settled by the celebration of the matrimony; or when grave enmities have prevailed among the blood relatives and relatives by affinity of the contracting parties and, although peace has already been made among them, the celebration of the matrimony would nevertheless conduce to the strengthening of that peace."

7. "Excessive, suspicious, or dangerous familiarity, and also cohabitation under the same roof, which cannot easily be prevented."

This cause could occur if, for example, a maid lives with a man alone and sinister rumors about their life are spread. Below, under nn. 14 and 15, similar and still graver causes are adduced.

8. "Intercourse previously had with a blood relative, relative by affinity, or another person laboring under an impediment, and pregnancy and therefore the legitimation of offspring, so that provision may be made for the good of the offspring itself and for the honor of the woman, who otherwise would remain unmarried. This certainly is one of the more urgent causes for which a dispensation is wont to be given even to common persons."

In the Instruction the words are added: "provided that the intercourse was not committed in the hope of obtaining a dispensation more easily; which circumstance would have to be expressed in the supplication."²⁶⁴ But these words were abolished by the Decree of the Holy Office of June 25, 1885, which established that "matrimonial dispensations granted thereafter would be valid even if incestuous intercourse, or the design and intention of obtaining a dispensation more easily by means of it, had been withheld." This canonical cause of intercourse is among the defaming causes, and accordingly it is often acknowledged only in the internal forum and therefore pertains to the Tribunal of the Sacred Penitentiary. If the intercourse was publicly known, recourse must be made not to the Sacred Penitentiary but to the Sacred Congregation of the Sacraments.

9. "The infamy of the woman arising from the suspicion that, being excessively familiar with her blood relative or relative by affinity, she has been carnally known by him, even if the suspicion is false, when, unless the matrimony is contracted, the woman would remain gravely defamed or unmarried, would have to marry a man of unequal condition, or grave harms would arise."

10. "The revalidation of a matrimony which was contracted in good faith and publicly... because its dissolution can scarcely be made without public scandal and grave harm, especially to the woman. But if the spouses entered the nuptials in bad faith, they least of all merit the favor of a dispensation, as the Council of Trent provides, sess. 24, c. 5, De reform. matrim."

Although the spouses do not merit a dispensation from the impediment if they contracted an invalid matrimony in bad faith, nevertheless the present discipline is milder. For a dispensation is granted not only if one party alone contracted in bad faith, but even if both contracting parties were indeed in bad faith but now promise a serious and trustworthy amendment. The reason is that so many harms are wont to arise from the separation of the spouses that it is preferable to grant the dispensation. In seeking a dispensation for convalidating an invalid matrimony, however, mention must always be made of whether the spouses contracted the matrimony in good or bad faith.

²⁶⁴ Whether by the Holy Office decree of March 18, 1891 (Collectan. de Prop. Fide, n. 1749), all marriages contracted with this intercourse withheld were convalidated is not certainly established.

864. 11. "Danger of celebrating a mixed matrimony or of celebrating before a non-Catholic minister. When there is danger that those who wish to contract matrimony in some degree, even one of the greater degrees, may, because of the denial of a dispensation, approach a non-Catholic minister for the celebration of the nuptials, in contempt of the authority of the Church, a just cause for dispensing is found; for there is present not only a most grave scandal of the faithful, but also the fear of the perversion and defection from the faith of those acting in this way and despising the impediments of matrimony, especially in regions where heresies spread with impunity.... The same must be said concerning the danger that the Catholic party may dare to celebrate matrimony with a non-Catholic."

12. "Danger of incestuous concubinage...."

13. "Danger of civil matrimony. From what has been said it follows that the probable danger that those who seek a dispensation, if they do not obtain it, will celebrate only a civil matrimony, as they say, is a legitimate cause for dispensing."

14. "The removal of grave scandals."

15. "The cessation of public concubinage."

16. "Excellence of merits, when someone has deserved exceedingly well of religion, whether by combat against the enemies of the Catholic faith, by liberality toward the Church, by learning, by virtue, or in another manner."

These merits need not be those of the contracting parties themselves, but can also be those of their parents or ancestors.

"These are the more common and more important causes which are wont to be adduced for obtaining matrimonial dispensations." Thus the cited Instruction. Therefore, other causes which can move the legislator to grant the dispensation sought are not excluded.

865. Non-canonical or impulsive causes, which are wont to suffice for obtaining a dispensation at least of the lesser degree,²⁶⁵ can be enumerated as follows:

1. On the part of the female petitioner: a) difficulty in finding a man equally commendable in character, faith, and morals; b) infirmity and other defects, for example, illegitimacy of birth, the loss of virginity already suffered, etc.; c) orphanhood, that is, if the female petitioner is bereaved of both parents; d) assistance to be furnished to her parents, especially if they are poor.

2. On the part of the male petitioner: a) infirmity, so that he needs the care and consolation of a good wife; b) the care of offspring received from a preceding matrimony; c) the help of a wife for managing the household.

3. On the part of both: a) the intention of matrimony already made known, so that it cannot be abandoned without infamy; b) the virtues and good morals of each; c) the good of the parents.

²⁶⁵ Cf. above, n. 778 (e).

866. It must be distinguished most carefully whether a dispensation is to be sought from a public impediment, from an occult impediment, or from both at the same time. All matrimonial dispensations, however, are sought in the name of the contracting parties, and therefore the petition is to be made in the third and not the first person, for example, "Titius seeks." According to the style of the Curia, contracting parties seeking a dispensation are called: male petitioner (orator), female petitioner (oratrix), petitioners (oratores), male bearer (lator), female bearer (latrix), bearers (latores).

A dispensation for the external forum is sought by the parish priest through the episcopal curia. The parish priest of the bride is wont to seek the dispensation, unless a reasonable cause suggests otherwise; and if a mixed matrimony is contracted, the parish priest of the Catholic party sends the petition.

A dispensation for the internal forum is sought by the confessor, and likewise through the episcopal curia, unless the danger of violating the sacramental seal obliges him to send the petition to the Sacred Penitentiary. Nor is it required that the dispensation be sought by the confessor of each penitent, because the dispensation proceeds from the Pope, and when the impediment has been removed from one party, the other party also becomes free.²⁶⁶ Hence, if, for example, an occult impediment of crime is present, it suffices that the confessor of the bridegroom seek the dispensation. But if there is an impediment which affects only one party, such as an occult simple vow, then certainly the confessor of that party must seek the dispensation; and if each party is bound by a vow, a double dispensation must be sought.

²⁶⁶ Thus the Sacred Penitentiary, September 4, 1839.

867. 1. The method of seeking a dispensation from a public impediment. The following must be expressed in the petition:

a) "The name and surname of the petitioners, each to be written distinctly and clearly and without any abbreviation of letters."²⁶⁷

If someone has several surnames, it is not required that absolutely all be indicated, provided that the petitioner can clearly be recognized from the name indicated. It is advantageous, although it is not commonly necessary, that the age of the contracting parties also be indicated. It must be indicated, however, if one party is non-Catholic.

b) "The diocese of origin or of actual domicile."

The reason is that the Roman Curia is wont to commit the execution of the dispensation to the bishop of the domicile or quasi-domicile of the contracting parties.

c) "Even the lowest species of the impediment."

Hence, in consanguinity and affinity not only the degree, whether equal or unequal, but also the line must be indicated.²⁶⁸

d) "The number of impediments."

Therefore, it must be indicated whether simple or multiple consanguinity or affinity is present; besides diriment impediments, impedient impediments also, if any are present, must be reported, and especially the impediment of mixed religion must not be passed over in silence. Formerly, for the validity of a dispensation, incestuous intercourse perhaps had between the spouses had to be expressed in the petition; likewise, it had to be indicated whether the intercourse had been had with the intention that a dispensation be obtained more easily. All these requirements have now been abolished, because it could have been hard for the spouses to have to confess these sins outside confession. Hence it happened that because this incestuous intercourse was concealed, the dispensation and the matrimony itself were invalidated, which was certainly a very great inconvenience.²⁶⁹

e) "The various circumstances."

Whether the matrimony has been contracted or is to be contracted; if already contracted, it must be disclosed whether it was contracted in good faith, at least on the part of one party, or with knowledge of the impediment; likewise, whether after the proclamations had been made and according to the form prescribed by canon law; finally, whether it has been consummated.

f) The causes of the dispensation.

Insofar as possible, the canonical causes described above must be adduced. It is advantageous that all causes, whether canonical or non-canonical, be adduced. For the stronger and more numerous these causes are, the more easily the dispensation is obtained.

²⁶⁷ Thus the Instruction of the Sacred Congregation for the Propagation of the Faith of May 9, 1877, from which all the following things also are taken.

²⁶⁸ Hence it is very advantageous, and indeed is required in certain dioceses, that a genealogical diagram of the petitioners be added.

²⁶⁹ Cf. Holy Office, June 25, 1885, and March 18, 1891 (Collectan. de Prop. Fide, nn. 1639 and 1749).

868. g) The state of the petitioners' fortune. Although the Council of Trent²⁷⁰ commanded that dispensations be granted gratuitously, because to accept money for the spiritual favor of a dispensation is simony, nevertheless nothing prevents something from being exacted for the support of officials and for other honorable causes. Accordingly, in granting a dispensation some charge is wont to be imposed, in which four things are comprised:

a) the charge properly so called, which serves for the support of the officials of the Roman Curia;

b) the componenda or composition, which is a sum of money to be paid to the Roman Dicasteries on the occasion of the dispensation, beyond the charge, so that it may be expended upon pious works. This componenda often, though not always, has the character of a penalty or fine, so that the faithful may be deterred from entering marriages to which impediments, especially of the greater degree, stand opposed;

c) the agency fee (agentia), that is, the remuneration which is owed to those persons who conduct business in the Roman Curia either for a diocese or for individual petitioners and are called "Agents." They are private persons and not rarely laymen;

d) money to be paid to Ordinaries for the execution of the dispensation obtained. This money or charge is to be determined once for all by the provincial council or by a meeting of bishops and approved by the Apostolic See.²⁷¹

The money to be paid in matrimonial dispensations is measured according to two rules: 1. according to the quality of the impediments, and 2. according to the fortune of the petitioners. For the greater the impediment is, the greater the charge imposed; and the smaller the petitioners' fortune is, the smaller the charge exacted from them.

According to the discipline now in force, four or five classes of petitioners are distinguished:

a) the poor and wretched, who have no fortune and live by manual labor or industry. These are bound to pay nothing for obtaining a dispensation;

b) the truly poor, whose goods, after debts and other burdens have been deducted, do not much exceed 3,000 francs. A moderate charge to be paid is imposed upon them;²⁷²

c) the almost poor, whose fortune, after debts have been deducted, does not much exceed the value of 10,000 francs. Besides the charge, a moderate componenda, for example, of 10 francs, is imposed upon these;

d) those of common means, whose fortune much exceeds the sum of 10,000 francs;

e) the rich or noble are held to be those whose fortune, after all debts have been deducted, produces very great revenues. The sole difference between the common form and the form for the rich or noble in a dispensation is that a greater componenda is imposed upon the rich. The charge, however, is the same. Since today it is not rarely difficult to establish the fortune of the petitioners, some suitable and free offering is sometimes wont to be offered in the petition for the dispensation; for example: "The poor petitioners offer 20 lire in all," or, if the petitioners are not poor: "The petitioners offer 50 (100) lire in all, which offering is just and reasonable according to the circumstances of the place, persons, and possessions." It must be noted that in computing the fortune, the means of each person about to marry are to be added together, unless one party is non-Catholic. For that party's fortune is not computed. If persons with an unjust will refuse to pay the charge for obtaining some dispensation whose grant is nevertheless morally necessary for avoiding sins and scandals, this is to be indicated by the Ordinary in the petition. The necessary dispensation will then nevertheless be granted, but the Ordinary communicating the dispensation sought must admonish the petitioners, if this can be done suitably and prudently, that in justice something is owed to the Holy See. Even an error or fraud unjustly committed concerning the condition of the petitioners' fortune does not render the dispensation obtained invalid.²⁷³ Apart from some moderate payment under the title of chancery expenses, dispensations granted by bishops are not subject to any charge, unless, however, by an apostolic indult some sufficiently moderate sum can be exacted.²⁷⁴ All dispensations for the internal forum granted by the Sacred Penitentiary are given gratuitously;²⁷⁵ postal expenses, however, must be paid.

²⁷⁰ Sess. 24, c. 5, De reform. matrim.

²⁷¹ Code of Canon Law, can. 1507.

²⁷² This charge was wont to be: 32 francs in a dispensation from the impediments of affinity in the first degree and of the second degree touching the first in affinity or consanguinity; 26 francs for the equal second degree both of affinity and of consanguinity; 21 francs in all other degrees of consanguinity and affinity.

²⁷³ Cf. Ordo servandus in Curia Rom., common norms, c. 11, n. 3 (Acta Apost. Sed. I, 56).

²⁷⁴ Cf. Vogt, Das kirchl. Eherecht, § 50, where the charges customary in the Archdiocese of Cologne are indicated. If a bishop exacted a charge, he would be bound to restitution. Code of Canon Law, can. 1056.

²⁷⁵ Ordo serv. in C. R., special norms, c. 8, a. 1 (Acta Apost. Sed. I, 102).

869. 2. The method of seeking a dispensation from an occult impediment. Since in seeking dispensations from occult impediments entrusted or even sacramental secrecy must be diligently observed, the parish priest or confessor must prudently consider whether the petition is to be sent to the Sacred Penitentiary or to the diocesan bishop. In small places the danger of violating secrecy is more imminent than in large cities. In the petition, not true but fictitious names, for example, Titius, Caius, Anna, Cornelia, etc., must be written. The lowest species of the impediment and its circumstances must be declared, and finally the cause of the dispensation sought must be adduced. By way of example, we give here a petition directed to the Sacred Penitentiary:

Most Eminent Prince,

Titius, a Catholic widower, had carnal intercourse with Titia, a Catholic, during his first matrimony and promised matrimony to her; and therefore he is prohibited from entering the promised matrimony with Titia. For the impediment of crime arising from adultery with a promise of matrimony stands in the way. This impediment is wholly occult, and unless matrimony is truly contracted between Titius and Titia, great scandals and quarrels will arise. Therefore Titius humbly asks Your Eminence that a dispensation be granted to him. May it please Your Eminence to direct the Rescript to me, the confessor signed below.

Fribourg (Switzerland) Rue de Romont 4 Your most humble servant, Carl Müller.

On the outside, however, upon the envelope of the letter let there be written:

To the Most Eminent Cardinal Major Penitentiary Palace of the Holy Office Rome.

Note. On December 10, 1891, Leo XIII prohibited petitions for dispensations from being admitted in the Roman Curia by means of the telegraph because of the great inconveniences which might otherwise occur. The same has been established by several bishops for their dioceses. Nevertheless, in a case of most urgent necessity it is permissible to seek and to give matrimonial dispensations by means of telegraph or telephone;²⁷⁶ yet such a method is never necessary, and therefore if the Ordinary cannot be approached personally or by letter, there is judged to be a moral impossibility of approaching him, in which the parish priest and confessor can dispense according to what was said above, n. 860.²⁷⁷ It is indeed always fitting that the Latin language be employed in seeking a dispensation; nevertheless, in itself nothing prevents the language of the country from being employed in letters directed to the diocesan bishop; in letters to be directed to the Roman Curia it is also permissible to employ the Italian language or another sufficiently well-known language.

²⁷⁶ Cf. Vogt, loc. cit., § 52.

²⁷⁷ Cf. Pontifical Commission, November 12, 1922 (Acta Apost. Sed. XIV, 663).

870. 3. The method of seeking a dispensation when occult and public impediments occur at the same time.

A dispensation from the public impediment must be sought as was said above, n. 867. In the petition for a dispensation from the occult impediment, however, mention must also be made of the public impediment from which a dispensation has already been obtained or at least sought in the competent forum.²⁷⁸ Because of the danger of defamation, it is rarely permissible to seek a dispensation from both impediments in the episcopal curia. Accordingly, in practice it is preferable to send the petition for a dispensation from the public impediment to the episcopal curia and to seek the dispensation from the occult impediment from the Sacred Penitentiary. But since sometimes time does not suffice for having recourse to the Sacred Penitentiary, the defamation of the petitioners is also sufficiently guarded against in the following manner: the dispensation to be sought from the public impediment is directed to the bishop's vicar general, while the dispensation from the occult impediment is sought from the bishop himself, who is asked to grant the dispensation by himself and without the mediation of an official. As is readily evident to one considering the matter, not every danger of defamation is avoided in this manner, and consequently it is not permissible to employ it except with the express consent of the persons about to marry.

²⁷⁸ Here is an example of such a petition: Caius and Sempronia, related by consanguinity in the equal second degree of the collateral line, intend to contract matrimony. Besides the impediment of consanguinity, from which a legitimate dispensation has already been granted (will be sought), there stands in the way the occult impediment of crime arising from adultery with a promise of matrimony, etc. Cf. Vogt, loc. cit., § 51.

871. The general rule, to which only a few exceptions stand opposed, can be stated as follows:

According to the discipline now in force, the Roman Curia is wont to grant matrimonial dispensations in commissorial form; bishops, however, using either their own or delegated authority, dispense in gracious form, at least if it is a question of public impediments.

Dispensations granted in gracious form do not of their own nature require an executor.²⁷⁹ Dispensations granted in commissorial form, however, obtain their effect only when they are legitimately committed to execution, or, as they say, "fulminated." For public impediments the Roman Curia is wont to commit the execution of the dispensation to the Ordinary of the petitioners or to the Ordinary of the place. Such an Ordinary is the one "who gave the testimonial letters or transmitted the prayers to the Apostolic See, whether he be the Ordinary of origin or of domicile, of each spouse or of either of them."²⁸⁰ This Ordinary must execute the dispensation in writing and can dispense "even if the spouses, at the time when the dispensation is to be committed to execution, have left their domicile or quasi-domicile in that diocese and have departed into another diocese, never to return, provided, however, that the Ordinary of the place in which they desire to contract matrimony has been notified."²⁸¹ For occult impediments, the execution of the dispensation is wont to be committed "to the proper parish priest of the bearers, or to a confessor chosen, or to be chosen, by them from among those approved by the local Ordinary." In practice, dispensations of this kind are wont to be committed to execution in the confessional. If the impediment affects only one penitent, for example, a vow of chastity, that one alone is to be dispensed; but if the impediment affects both contracting parties, for example, the impediment of crime, each is then to be dispensed, although by different confessors. But even in this case, a dispensation granted and fulminated to one and not to both is valid, as was already indicated above, n. 866, concerning the petition for a dispensation.

Note. All who grant a dispensation by power delegated by the Apostolic See are to make express mention of the pontifical indult in that dispensation.²⁸²

²⁷⁹ Ordo serv. in C. R., special norms, c. 3, a. 4 (Acta Apost. Sed. I, 63).

²⁸⁰ Holy Office, February 20, 1888.

²⁸¹ Code of Canon Law, can. 1055.

²⁸² Ibid., can. 1057.

872. Clauses added. Upon receiving the Rescript, the delegate must diligently attend to all the clauses added,²⁸³ of which the principal ones are the following:

1. "If the things stated are true." Regularly, for the validity of the dispensation it is required that, at the moment of fulmination, all the things stated in the petition be true, at least as regards their substance. Only impediments of the lesser degree are excepted;²⁸⁴ concerning these it is established that all such dispensations are subject to no defect of obreption or subreption. It matters little whether, in impediments of this kind, the dispensation was obtained immediately from the Sacred Congregation of the Sacraments or through the mediation of bishops to whom a habitual faculty of dispensing has been granted. It is not so certainly established whether obreption, the statement of what is false, and subreption, the withholding of what is true, which do not invalidate the dispensation granted, can extend to the impediments themselves, of the lesser degree, from which dispensation is to be given, or only to the causes alleged for obtaining the dispensation. It seems more probable that obreption and subreption can extend only to the causes of the dispensation; and therefore, even according to the modern discipline, the dispensation obtained is invalid if the impediment itself has been declared in an altogether false manner.²⁸⁵ This is sufficiently evident because the Pontiff does not speak of the impediments themselves, but only of the causes of the dispensation, saying that in these cases he always grants a dispensation "for reasonable causes," that is, not moved by the causes adduced by the petitioners.²⁸⁶ From the things said, and supposing them to be true, follows the solution of the two following cases:

Caius seeks a dispensation from the impediment of affinity in the second degree of the collateral line; but in fact he has contracted consanguinity in the third degree of the collateral line. The dispensation obtained seems to be invalid because obreption was committed concerning the impediment itself; for affinity and consanguinity are entirely different things, although each is numbered among the impediments of the lesser degree.

Peter seeks a dispensation from the impediment of consanguinity in the third degree of the collateral line, alleging as the cause for the dispensation sought the preservation of the woman's reputation, since she is pregnant from illicit intercourse. The dispensation is granted, but the alleged cause was false because the woman was not pregnant. Nevertheless, the dispensation remains valid notwithstanding the defect of obreption. Thus, saving a better opinion.

Therefore, before the execution of the dispensation, it must be investigated whether the things stated in the petition presented were true, or the so-called "verification of the prayers" is necessary. By common law no special method of this verification is prescribed, but it suffices to make a brief investigation as to whether the things adduced in the petition are in fact true. In certain dioceses, however, determined questions to which answers must be given are indicated by particular law.²⁸⁷

²⁸³ Concerning the observance of these clauses, three things must be noted: 1. "The clauses are to be observed exactly, insofar, however, as the circumstances of affairs, times, and places can permit." Thus the Holy Office, June 15, 1875 (Collectan. de Prop. Fide, n. 1444). 2. "The omission of clauses does not affect the validity of the grant, provided that the woman was not in fact abducted, or, if abducted, is not in the power of the abductor." Thus the Sacred Congregation for the Propagation of the Faith, January 26, 1877 (Collectan. de Prop. Fide, n. 1466). 3. "Conditions in Rescripts are then alone judged essential for their validity when they are expressed by the particles if, provided that, or another of the same signification." Thus the Code of Canon Law, can. 39.

²⁸⁴ Cf. above, n. 778 (e).

²⁸⁵ Thus also De Smet, loc. cit., n. 867.

²⁸⁶ Cf. Code of Canon Law, can. 1054.

²⁸⁷ Such questions prescribed for the Archdiocese of Cologne may be seen in Vogt, Das kirchl. Eherecht, § 52; for the Diocese of Bruges, in De Smet, De sponsal. et matrim., n. 873.

873. 2. "A grave salutary penance having been imposed upon them according to the measure of the fault at your discretion." This penance is wont to be called juridical and is distinct from sacramental penance. According to an admonition of the Sacred Penitentiary of April 8, 1890, the executor of the dispensation, "in determining the quality, gravity, duration, etc., of the penance, is to exceed the bounds neither of severity nor of humanity and is to take account of the condition, age, infirmity, office, sex, etc., of those upon whom the penalty to be inflicted is enjoined." Moreover, the same Sacred Penitentiary replied on December 14, 1891 that "the omission of this imposed penance does not render the dispensations sought invalid"; but it must be imposed even if the confessor, without recourse made to the Sacred Penitentiary, dispenses in an urgent case from a culpable impediment, for example, crime. The penance to be imposed is distinguished as salutary, grave, or grave and prolonged.²⁸⁸

3. "These having been torn immediately," that is, the Rescript obtained from the Sacred Penitentiary must be torn or burned at least within three days after the dispensation has been fulminated.²⁸⁹ Nothing prevents the confessor, however, from transcribing this Rescript for his instruction and prudently preserving the transcript for himself. In the transcription, however, everything which could perhaps lead to knowledge of the penitent for whom the dispensation was obtained must be omitted. If it sometimes happens that the penitent for whom the dispensation was sought does not immediately return, or does not return at all, to the confessor, the response of the Sacred Penitentiary of February 29, 1904 is to be observed: "The faculty endures even after the letters have been burned; nevertheless, it is permissible to retain them, the danger of loss having been removed, as long as it is probable that the penitent will appear."²⁹⁰

There are still several other customary clauses which can easily be understood, for example, "after sacramental confession has first been heard," "the occasion of sin having been removed," etc. For understanding the clause "provided that the impediment is occult," however, the things said above, n. 778, concerning the division of impediments must be recalled. The execution of the dispensation itself must be given in writing for the external forum. Therefore, the parish priest must note in the matrimonial register that a dispensation from such an impediment has been granted; but he must preserve the Rescript itself in the parish archive. For the internal forum it is wont to be prescribed that absolution from censures and sins be given and the dispensation pronounced; this can be done in this or a similar manner: after the customary absolution from censures and sins, let the confessor say: "Moreover, by apostolic authority specially delegated to me, I dispense you from the impediment of affinity, or of crime, so that, notwithstanding it, you may be able to contract matrimony with the said woman. By the same authority I declare the offspring received or to be received legitimate. In the name of the Father and of the Son and of the Holy Spirit. Amen. May the Passion of Our Lord Jesus Christ, the merits of the Blessed Virgin Mary, etc."²⁹¹ For a reasonable cause, the fulmination of the dispensation can also be made in the vernacular language.²⁹²

²⁸⁸ According to De Smet, loc. cit., n. 871, the Ordinary of the Diocese of Bruges is wont to impose as a salutary penance the daily recitation of five Our Fathers and Hail Marys for fifteen days; as a grave salutary penance, the daily recitation, for four weeks, of three Our Fathers and Hail Marys and, once, acts of faith, hope, charity, and contrition; as a grave and prolonged penance, the performance of this grave penance for two months. When the clause concerning confession once in each month for a time to be established at the discretion of the one dispensing is added, it is prescribed that they confess once in each month for four months.

²⁸⁹ Cf. St. Alphonsus, Theol. mor., bk. 6, n. 1143.

²⁹⁰ Cf. Linzer Theol. Quartalschrift (1905), 382.

²⁹¹ Other authors prefer that a dispensation from impediments be given before sacramental absolution. Here is an example of a formula proposed by De Smet, loc. cit., n. 886: "May Our Lord Jesus Christ absolve you, and by His authority I absolve you from every bond of excommunication and interdict, especially from the excesses committed, and also from the penalties and censures which you may perhaps have incurred because of the foregoing, insofar as I am able and you are in need. Moreover, by apostolic authority specially delegated to me, I dispense you from the impediment of crime arising from adultery and a promise given, so that, notwithstanding it, you may be able publicly to contract matrimony with the woman whom you intend to marry, in the form of can. 1094, to consummate it, and to remain in it. By the same authority I announce and declare that the offspring received and to be received will be legitimate. In the name of the Father, etc. Thereafter, I absolve you from your sins in the name of the Father, etc. May the Passion of the Lord, etc." This formula seems to be too long for the confessional and contains several superfluous things.

²⁹² Cf. Leitner, Lehrb. d. kirchl. Eherechtes, 454.

874. Scholion. On defects of a dispensation and their sanation. A matrimonial dispensation can be vitiated in various ways, namely, a) on the part of the one granting it, who lacks the necessary authority, for example, if a dispensation was denied by the bishop and afterward granted by his vicar general without the express consent of the bishop; b) on the part of the one executing the dispensation, who does not observe the essential clauses;²⁹³ c) on the part of the one seeking the dispensation, who in good or bad faith has alleged a falsehood, or against whom some censure has been imposed by a condemnatory or declaratory sentence.²⁹⁴ Today, after the Roman Curia was reformed by Pius X, defects invalidating a dispensation can occur quite rarely.

In the first place, a dispensation is vitiated if in bad faith something false was declared in the petition for the dispensation. For "fraud and deceit ought not to support anyone," and "a lying petitioner ought to be deprived entirely of the things obtained." Thus at least if it is a question of a dispensation from the impediments of the greater degree enumerated above, n. 778.²⁹⁵ Therefore, any fraud voluntarily employed to obtain a dispensation from impediments of this kind vitiates the dispensation. Perhaps the matter is otherwise if it is a question of a dispensation obtained from an impediment of the lesser degree, where obreption or subreption no longer stands in the way of the validity of the dispensation, as was said above, n. 872.

If an error has entered the petition in good faith, the grant of the dispensation is invalid if the error was substantial. An error is judged to be substantial a) if it concerns the single motive cause; but if, among several motive causes adduced, at least one is true, the dispensation is not invalidated;²⁹⁶ b) if at the time of the grant of the dispensation a notable difference in the impediment supervenes or is discovered, for example, if it is discovered that not only simple but also multiple consanguinity is present. A dispensation granted from an impediment of consanguinity or affinity in some degree of the impediment is valid, however, even if an error concerning the degree entered the petition or the grant, provided that the degree truly existing is lower; or even if another impediment of the same species in an equal or lower degree was withheld. Thus the Code of Canon Law, can. 1052.

When a defect invalidating the dispensation has been discovered, either a new dispensation or the so-called letters Perinde valere, "To Have Equal Force," must be sought. The whole case must be set forth in the competent forum in exactly the same manner as if nothing had thus far been done. Accordingly, for an error committed concerning public impediments, recourse must be made to the bishop, who is wont to have broad faculties concerning these letters Perinde valere. But if the dispensation obtained was invalid because of an occult defect, the dispensation from which pertains to the Sacred Penitentiary, recourse must also be made to this tribunal for the sanation of the vitiated dispensation. In this last case recourse to the bishop also lies open, provided that there is no danger of violating secrecy or the sacramental seal.

²⁹³ Which clauses are essential was said above, n. 872, note 283.

²⁹⁴ Code of Canon Law, can. 36, § 2.

²⁹⁵ Cf. Ordo serv. in C. R., special norms, c. 7, a. 3, n. 20 (Acta Apost. Sed. I, 91).

²⁹⁶ Code of Canon Law, can. 42.

193. • I. Necessity of a just cause for dispensing.

a) From an ecclesiastical law establishing an impediment of matrimony, let there be no dispensation without a just and reasonable cause, account being taken of the gravity of the law from which dispensation is made; otherwise the dispensation, by whomsoever granted, except the Holy See, is illicit and invalid. (Can. 84 § 1.)

b) "A dispensation, in doubt concerning the sufficiency of the cause, is licitly sought and can be licitly and validly granted." (ibid. § 2.)

194. • II. Division of the causes of dispensation.

a) Motive or final causes are called those which, taken singly or collectively, suffice of themselves for obtaining the dispensation.

Impulsive causes are those which, although insufficient of themselves, nevertheless dispose the superior to grant the dispensation more quickly or more easily.

In practice it is better to set forth all causes which are apt to incline the superior to granting the favor.

b) Causes which law or the style of the curia recognizes as final or motive are called canonical causes.

195. • III. List of canonical causes.

The Instruction of the Sacred Congregation of Propaganda Fide of the day 9 May 1875¹ enumerates sixteen canonical causes. They are:

¹ Collectanea S. Congregationis de Propaganda Fide, II, n. 1470.

a) Narrowness of place, whether absolute, i.e., when in the place there are not more than 300 hearths or 1500 inhabitants and the place is distant more than 1500 meters from the nearest place; or relative, when the kinship of the woman in this place has been propagated so broadly that she cannot find another man of equal condition besides the one impeded.

b) Superadult age of the woman: i.e., if a virgin has completed the age of 24 years and does not find another spouse suitable for herself. If nevertheless she has reached her 40th year, this cause is no longer admitted as canonical.

c) Deficiency or incompetence of dowry, which namely prevents the woman from finding another man of equal condition besides the one impeded.

d) Lawsuits over succession of goods already arisen, or grave or imminent danger of the same: in this sense, that there is no one willing to assist the woman in this matter besides the man who desires to marry her.

e) Poverty of a widow burdened with numerous offspring, or who at the same time is younger and is found in danger of incontinence.

f) The good of peace, or grave enmities to be composed.

i) Infamy of the woman, from suspicion, even false, of evil familiarity with an affine or blood-relative.

j) Revalidation of a matrimony contracted in good faith and in the form of the Church.

l) Danger of a mixed matrimony or of one to be celebrated before a non-Catholic minister, with most grave scandal of the faithful and grave spiritual harm.

m) Danger of incestuous concubinage.

n) Danger of civil matrimony.

"Nevertheless, in this or similar cases, let dispensation not be granted with excessive facility on account of threats, with grave danger of spreading religious indifferentism."²

² Vermeersch-Creusen, cited work, t. II, n. 318.

p) Removal of grave scandals.

q) Cessation of public concubinage.

r) Excellence of merits in a benefactor of the Church or one very well deserving concerning religion.

196. • IV. Non-canonical causes.

Such causes are usefully alleged as render matrimony with another person difficult.

197. • V. Truth of the causes which are alleged.

a) Generally it is required, even for the validity of the dispensation, that true motive causes be alleged.

b) Nevertheless, a dispensation is valid, notwithstanding the falsity of the cause adduced, in two cases:

1. When the Holy See uses this or an equivalent formula in the concession: "from certain reasonable causes."

2. Whenever there is question of an impediment of lesser grade. (Can. 1054.)

[Printed here after n. 197; the following two items evidently continue the canonical-cause list in n. 195.]

g) Excessive, suspect, dangerous familiarity, and also cohabitation under the same roof, which cannot easily be impeded.

h) Copula and pregnancy, and therefore legitimation of offspring. This cause is among the more urgent ones.

207. • I. When execution is necessary.

a) As was said above at n. 178 d, dispensation can be given in gracious form or in commissory form.

The former form does not require execution, but is valid from the moment of its concession. But if it has been given in commissory form, the dispensation then only exerts effect when it is committed to execution or fulminated by him who has been designated for this office.

b) The Roman Curia is accustomed to grant dispensations in commissory form.

Bishops, however, grant them in gracious form if there is question of a public impediment; in commissory form, if there is question of an occult impediment.

924. Causes of dispensation. - From an ecclesiastical law one is not to be dispensed without a just and reasonable cause, regard being had to the gravity of the law from which dispensation is made; otherwise a dispensation given by an inferior is illicit and invalid. Thus can. 84, § 1. Hence matrimonial dispensations cannot be granted without a grave cause proportioned to the impediment; but those thus granted by the Holy See are illicit, and by all others illicit and invalid. Nevertheless in doubt concerning the sufficiency of the cause, a dispensation is licitly sought and can licitly and validly be granted (can. 84, § 2).

Some causes are motive or final, which, taken singly or collectively, of themselves suffice for obtaining a dispensation, and without which a dispensation is not granted, or not in such a way or in such a form; others are impulsive, which, although insufficient of themselves, nevertheless dispose the superior to grant the dispensation more quickly or easily, but without which he would also grant the dispensation and in the same form. Motive causes, if they are expressly recognized as such by law, are called canonical; otherwise they are called reasonable and non-canonical.

A. Canonical causes are listed as sixteen in the instruction of the S. Congregation of Propaganda Fide, May 9, 1877:

1° Narrowness of place, either absolute, as if in the place there are not more than 300 hearths or 1500 inhabitants and the place is distant more than a mile or 1500 meters from the nearest place (S. C. C., July 8, 1876); or relative, if the kinship of the woman in this place is so widely propagated that she cannot find another man of equal condition besides the impeded man, or does not have occasion for a marriage of this kind.

2° The over-adult age of the woman, if a virgin has completed the age of 24 years and does not find another spouse suitable for herself; but this cause does not aid a widow who desires to enter other nuptials, nor a virgin who has reached her 40th year.

3° Defect or insufficiency of actual dowry, which, namely, prevents the woman from finding another man of equal condition besides the impeded man.

4° Lawsuits arisen over the succession of goods, or grave or imminent danger of the same, if there is no other who wishes to aid the woman in this matter besides the man who desires to marry her.

5° Poverty of a widow burdened with numerous offspring, or who at the same time is younger and is in danger of incontinence.

6° The good of peace, or grave enmities to be composed.

7° Excessive, suspect, dangerous familiarity, and also cohabitation under the same roof, which could not easily be prevented.

8° Copula and pregnancy and therefore legitimation of offspring, which cause is among the more urgent.

9° Infamy of the woman, from suspicion, even false, of evil familiarity with an affine or blood-relative.

10° Revalidation of a matrimony contracted in good faith and in the form of the Church.

11° Danger of a mixed marriage or of one to be celebrated before a non-Catholic minister, with very grave scandal of the faithful and grave spiritual harm.

12° Danger of incestuous concubinage.

13° Danger of civil matrimony.

14° Removal of grave scandals.

15° Cessation of public concubinage.

16° Excellence of merits in a benefactor of the Church or one very deserving of religion.

B. The following can be listed as non-canonical causes, which for the most part are reasonable and sufficient:

1° On the part of the female petitioner: a) if she has been bereft of one or both parents, or b) sprung from illegitimate birth, or c) held back by illness, deformity, or another defect, or d) already deflowered by another.

2° On the part of the male petitioner: a) if he is held by illness, or b) is a widower burdened with offspring, for whom he seeks a good mother, or c) needs the help of this woman, e.g., for managing domestic affairs.

3° On the part of the matrimony: a) everything prepared for the nuptials; b) the proposal of contracting divulged or persistent; c) the fittingness of the matrimony; d) the good morals of the petitioners; e) the good of the parents, if the father or mother needs help.

C. For the validity of a dispensation it is generally required that the motive causes which are alleged be true; moreover they must exist not indeed when the dispensation is sought, but before the concession of the dispensation if it is given in gracious form, before the execution or fulmination of the dispensation if it is given in commissory form, and the dispensation remains valid although afterward, even before the celebration of matrimony, the cause ceases.

Nevertheless: a) Reticence of the truth, or subreption, does not stand in the way of validity, provided all things have been expressed which, according to the style of the Curia, are to be expressed for validity (can. 42, § 1).

b) Nor does obreption, or the exposition of what is false, stand in the way, provided at least one motive cause is true (can. 42, § 2).

c) Indeed a dispensation is valid, notwithstanding the falsity of the single cause adduced, when the concession is given by this or an equivalent formula: from certain reasonable causes, i.e., diverse from those which are expressly alleged. Thus whenever it is a matter of impediments of minor degree (can. 1054), because dispensations concerning these are granted from reasonable causes approved by the Holy See.

d) A dispensation from impediments of consanguinity or affinity, granted in some degree of impediment, is valid, even if in the petition or in the concession an error concerning the degree has crept in, provided the degree really existing is inferior, or even if another impediment of the same species in an equal or inferior degree has been kept silent (can. 1052). Hence, if affinity concurring with alleged consanguinity has been kept silent, the dispensation is not valid for affinity, for the impediments are of diverse species.

e) A dispensation given by the Holy See over ratified and non-consummated matrimony, or a permission made for passage to other nuptials on account of the presumed death of the spouse, always carries with it a dispensation from an impediment proceeding from adultery with promise or attempted matrimony, if any such is needed (can. 1053); therefore reticence concerning these impediments does not stand in the way of the validity of the concession.

926. Execution of the dispensation. - A dispensation needs execution if it has been given in commissory form, because then it exerts its effect only when it is committed to execution or fulminated by him who was designated for this office; on the contrary, if it has been given in gracious form, it does not require execution but has force from the moment of its concession. The Roman Curia is accustomed to grant dispensations in commissory form; bishops in gracious form if it is a matter of a public impediment, in commissory form if it is a matter of an occult impediment.

The executor: 1° for public impediments is usually designated by a Sacred Congregation as the Ordinary who drew up or recommended the supplicatory libellus, even if those about to marry have migrated into another diocese; in which case the Ordinary of the diocese in which the matrimony is to be celebrated will have to be warned (can. 1055); moreover the Ordinary can delegate another to execute the dispensation (can. 57);

2° for occult impediments a dispensation is usually committed by the S. Penitentiary to a confessor among those approved by the Ordinary; one granted by the Ordinary for the sacramental forum is committed to the confessor, for the extra-sacramental internal forum to the pastor or another priest who transmitted the petition.

Let it be noted: A. As regards the conditions of execution:

1° No execution is made before the executor already has the rescript of dispensation, or knowledge of it has been transmitted to him officially by the authority of the rescriber (can. 53).

2° The executor is bound to attend to all the clauses of the rescript and faithfully adhere to them: omission of an essential condition invalidates the execution (can. 55). For validity there are required clauses which are introduced by the words: if, provided that, or other equivalent words, or if it is said that otherwise the dispensation is null (can. 39); those which are expressed by an ablative pertain to liceity alone, unless from the nature of the matter or from the style of the Curia they are necessary, as the promise of removing danger to the faith in a dispensation for mixed marriages, or the removal of scandal, for taking away which the separation of the spouses is to be preferred, although sometimes it can also be done in another suitable way. On the contrary, the imposition of a special penance or its fulfillment, although rigorously prescribed, are not required for validity. 1

3° He is also bound, unless it is a matter of an impediment of minor degree, to examine whether at the moment of execution the prayers still rest upon truth, and whether a new impediment has not arisen; yet if the inquiry is neglected, the execution is not invalid, provided the truth of the prayers still subsists. In the internal forum it suffices to interrogate the penitent, to whom of himself credence is to be given.

B. As regards the manner of execution:

1° Execution for the external forum is prescribed to be made in writing (can. 56); nevertheless it is valid, and, from a grave cause, also licit, when made orally. For the sacramental forum it is to be made by the living voice in the act of confession. For the non-sacramental internal forum generally it is to be made by the living voice; nevertheless sometimes in writing, when the impediment from which dispensation is made is occult in fact but public by nature: for then the dispensation given and executed must be registered in the secret book of the episcopal Curia.

2° A dispensation ought to be made expressly, by designating the impediment from which dispensation is made; whether a dispensation implicitly or tacitly conceded is invalid is not established. Express mention is also to be made of the apostolic faculty by force of which the dispensation is granted (can. 1057): this, however, is not prescribed for validity. Moreover no determinate form is prescribed.

3° If the impediment affects only one party, or is culpable only on one side, a dispensation made with that party suffices; otherwise each party must approach either the same one or diverse ones, and the dispensation is to be executed twice, which nevertheless is not required for validity. Hence if there are two confessors, the first hands the rescript to his penitent, after he has executed the dispensation on his own side, so that it may be transmitted to the other confessor through the other penitent (S. Pen., Nov. 13, 1748), so that a fitting penance may be imposed upon that person.

I say 1°. The Pope can dispense from all impediments of ecclesiastical law, validly indeed in every case, because the whole force of the impediment proceeds from his will; but licitly, if he does this for a just cause, as right governance requires.

I say 2°. When danger of death is urgent, local Ordinaries, in order to provide for conscience and, if the case bears it, for the legitimation of offspring, can dispense both over the form to be observed in the celebration of marriage, and over all and singular impediments of ecclesiastical law, whether public or occult, even multiple, except impediments arising from the sacred order of the presbyterate and from affinity in the direct line, the marriage having been consummated; and they can dispense their proper subjects wherever dwelling and all persons actually staying in their proper territory, scandal being removed, and, if the dispensation is granted over disparity of cult or mixed religion, with the customary cautions having been furnished (Can. 1043).¹

This canon truly grants the most ample faculties of dispensing in the article of death, in order to provide for conscience and, if the case bears it, for the legitimation of offspring; an ample field indeed; in a word, whatever truly urges that marriage be entered, and that by it provision be made for conscience, and, if the case bears it, for the legitimation of offspring, even offspring not yet born, suffices. It is not required that the co-parties be in concubinage; one cause simply suffices, from the two aforesaid causes, for the faculty here conceded to be rendered into use. To local Ordinaries, as they are understood in law, the faculty of dispensing is conceded: 1. over the form to be observed in the celebration of marriage; therefore they can grant a dispensation so that the betrothed simply furnish consent between themselves; 2. over all and singular impediments of ecclesiastical law, impeding and diriment, public or occult, single and multiple.

Two impediments are not contained in this most ample faculty: one from the sacred order of the presbyterate, the other from affinity in the direct line, arisen from consummated marriage. The faculty extends to subjects, wherever they dwell, and to all, even non-subjects, actually dwelling in one's proper territory. Nevertheless scandal must be removed; and in cases in which dispensation is made in disparity of cult and mixed religion, the cautions must be furnished. It makes no difference whether the impediment directly affects the sick person or the well person. With relation to affinity, that which the New Code decreed concerning its source must be kept before the eyes. The impediment from affinity in the direct line, from consummated marriage, is excluded, not another impediment of affinity of the direct line.

I say 3°. In the same circumstances of things of which in can. 1043, and only for cases in which not even the local Ordinary can be approached, the same faculty of dispensing belongs both to the pastor, and to the priest who assists at marriage according to the norm of can. 1098, n. 2, and to the confessor, but this last only for the internal forum in the act of sacramental confession (Can. 1044).²

In danger of death, on account of the same causes, but when the Ordinary cannot be approached, the same faculty is given to the pastor; to the priest who assists at marriage according to the norm of Can. 1098, § 2; and also to the confessor, but to this one only for the internal forum, in which case, when the sick person recovers, a dispensation for the external forum must necessarily be sought. - Cf. Can. 1047.

Titius, dying, with a Catholic family, opens to the priest that he is not joined in marriage with Bertha. In youth they went to the nearer city, and, having returned, told their own that they had already contracted marriage; they never dared to speak about this matter. The case is contained in the canon.

Titius, dying, now lives in concubinage with Martina, the daughter of the widow Martha. Martha, having Martina from a prior marriage, had married Titius, with whom she never consummated marriage. Then, Martha having died, Titius began to exercise concubinage with Martina. Affinity is had in the direct line from a valid marriage. This case also is comprehended in this concession.

I say 4°. § 1. Local Ordinaries, under the clauses established at the end of Can. 1043, can grant a dispensation over all impediments of which in the cited can. 1043, as often as an impediment is discovered when now all things have been prepared for the nuptials, and marriage cannot be deferred, without probable danger of grave evil, until a dispensation is obtained from the Holy See.

§ 2. This faculty also avails for the convalidation of a marriage already contracted, if there is the same danger in delay and time is not available for recurring to the Holy See.

§ 3. In the same circumstances of things, all those of whom in Can. 1044 enjoy the same faculty, but only for occult cases in which not even the local Ordinary can be approached, or not except with danger of violation of secrecy (Can. 1045).

Outside the article of death, when now all things have been prepared, and an impediment is discovered, and marriage cannot be deferred without probable danger of grave evil until a dispensation is obtained from the Holy See, or in a perplexed case, as was said, then local Ordinaries can dispense, precisely as in the article of death, over all impediments of which in Can. 1043. This faculty avails also for the external forum. It must be noted that here it is not a question of the form to be observed in the celebration of marriage. But scandal must be turned away and the cautions, if necessary, furnished.

Indeed the same faculty avails also for the convalidation of marriage in the same danger of delay and difficulty of approaching the Holy See. This surely is a faculty very much desired.

But when a perplexed case arises, and the local Ordinary cannot be approached, or not except with danger of violation of secrecy, the pastor, the priest who assists at marriage according to the norm of can. 1098 n. 2, and the confessor enjoy the same faculty for occult cases only, but not for public cases.

I say 5°. The pastor or priest of whom in can. 1044 should at once make the local Ordinary more certain concerning a dispensation conceded for the external forum; and it is to be noted in the book of marriages (Can. 1046).

I say 6°. Unless the rescript of the S. Penitentiary bears otherwise, a dispensation conceded in the non-sacramental internal forum over an occult impediment is to be noted in the book carefully preserved in the secret archive of the Curia of which in can. 379; nor is another dispensation for the external forum necessary, even if afterward the occult impediment becomes public; but it is necessary if the dispensation had been conceded only in the sacramental internal forum (Can. 1047).

In canons 1046 and 1047 provision is made for marriages themselves, so that the parties are made secure and other unions to be contracted invalidly are rendered difficult and, insofar as can be done, morally impossible.³

I say 7°. § 1. In marriages whether contracted or to be contracted, one who enjoys a general indult of dispensing over a certain impediment can, unless something else is expressly prescribed in the indult itself, dispense over it even if the same impediment is multiple.

§ 2. One who has a general indult of dispensing over several impediments of diverse species, whether diriment or impeding, can dispense over the same impediments, even public ones, occurring in one and the same case (Can. 1049).

In paragraph 1, both for marriages to be contracted and for those contracted, there is declared the extension of the general faculty of dispensation over a certain impediment, so that it comprehends cases in which the same impediment is multiplied, unless the indult expressly establishes otherwise.

In paragraph 2 there is had a general concession, desired and most welcome; namely, the faculty of cumulating matrimonial dispensations in one and the same case is now declared to be contained in the general indult of dispensing over several impediments of diverse species, whether diriment or impeding, even public. Thus an Ordinary who has a general indult of dispensing in the impediment of consanguinity and of disparity of cult and of mixed religion can now cumulate dispensations in a case, for instance, in which consanguinity and mixed religion occur, and so concerning others.

I say 8°. If at any time with a public impediment or impediments over which someone can dispense by indult, there concurs another impediment over which he cannot dispense, the Apostolic See must be approached for all; if, however, the impediment or impediments over which he can dispense are discovered after a dispensation has been obtained from the Holy See, he will be able to use his faculties (Can. 1050).

The reason for the necessity of approaching the Holy See for all is the known principle: the whole gravity of the matter must become known to the one dispensing, and a greater number of impediments renders dispensation more difficult; and hence both must be set forth to the Holy See so that dispensation may be made by it in both, notwithstanding the indult of dispensing which an inferior may enjoy for one impediment. But now, otherwise than before, provided that the new impediment contained in his indult be found after a dispensation has been obtained from the Holy See over another impediment, the Ordinary can use his faculty. In his indult the Ordinary has a faculty for impediment A, but not for impediment B. A case occurs in which impediments A and B coexist together. The Ordinary, having read the supplicatory libellus, recognizes that he can furnish nothing. He must send to Rome a petition of dispensation for both. Let there be another example of the same impediments, and of the same faculty of dispensing over one, but not over the other. The Ordinary seeks a pontifical dispensation for one, not thinking that a pontifical dispensation for both is necessary. The dispensation over impediment B having been obtained, he himself concedes one for impediment A. Invalid, as it seems to us, is the dispensation which he gives. A third case. It is set forth to the Ordinary himself that impediment B stands in the way of some marriage. A pontifical dispensation has been obtained, and then, after the dispensation has been obtained, it is discovered that impediment A also is present; in these circumstances, now, otherwise than before, he can use his faculty. S. C. de Prop. Fide, 10 May 1887.

I say 9°. A dispensation from an impediment of consanguinity or affinity, conceded in some degree of the impediment, avails, although in the petition or in the concession an error concerning the degree has crept in, provided the degree really existing is inferior, or although another impediment of the same species in an equal or inferior degree was passed over in silence (Can. 1052).

Reg. 35, R. J. in VI°. That which is greater always contains in itself what is less. Reg. 53 R. J. in VI°. He to whom that which is greater is licit, to him surely that which is less is licit. It is a special concession, with account taken of the difficulty arising from a double impediment of consanguinity or affinity; an error is made in the petition relative to the degree; or some impediment is passed over in silence. The dispensation avails if the existing degree is inferior, or if the impediment passed over in silence was of the same species in an equal or inferior degree.⁴

I say 10°. A dispensation given by the Holy See over a ratified and non-consummated marriage, or permission made for passage to other nuptials on account of the presumed death of a spouse, always carries with it a dispensation from the impediment proceeding from adultery with a promise or attempted marriage, if any such is needed, but by no means a dispensation from the impediment of which in can. 1075, nn. 2, 3 (Can. 1053).

For it not rarely happens that those who have obtained from the Holy See a dispensation over a ratified and non-consummated marriage, or a document of liberty on account of the presumed death of a spouse, wish to enter a new marriage with a co-party with whom, during the prior bond, they were guilty of the deed of adultery with a promise of marriage, or contracted civil wedlock; and therefore, for example, an impediment stands in the way. Once the aforesaid dispensation or document of liberty has now been conceded, a dispensation from the first species of crime is considered conceded. - Cf. S. C. de Sacr. 3 June 1912.

I say 11°. A dispensation conceded from a lesser impediment is invalidated by no defect either of obreption or subreption, even if the one final cause set forth in the prayers was false (Can. 1054).

Therefore a dispensation simply avails for lesser impediments; nor does the concealment of truth, or subreption, stand in the way, nor the exposition of falsehood, or obreption, in consanguinity in the 3rd degree of the collateral line, in affinity in the 2nd degree of the collateral line, in public honesty in the 2nd degree, in spiritual kinship, and in crime from adultery with a promise of marriage or attempted marriage, even by a civil act only.

I say 12°. Dispensations over public impediments committed to the Ordinary of the petitioners are to be executed by the Ordinary who gave the testimonial letters or transmitted the prayers to the Apostolic See, even if the betrothed, at the time when execution must be given to the dispensation, having abandoned the domicile or quasi-domicile of that diocese, have departed into another diocese no longer to return, with the Ordinary of the place in which they desire to contract marriage nevertheless having been warned (Can. 1055).

Therefore he who transmitted the prayers to the Apostolic See, the same Ordinary must fulminate the dispensation committed to himself; and this even if the betrothed at the time of fulmination have departed from the diocese, not going to return there, with the Ordinary of the place in which they desire to contract marriage nevertheless having been warned.

I say 13°. Except for some moderate prestation under the title of chancery expenses in dispensations for non-poor persons, local Ordinaries or their officials, any contrary custom being reprobated, cannot, on the occasion of a conceded dispensation, demand any emolument, unless this faculty has been expressly given to them by the Holy See; and if they have demanded it, they are bound to restitution (Can. 1056).

Wherefore in no way can fines or taxes be demanded by Ordinaries on the occasion of dispensations, except for a moderate sum for sustaining the chancery, unless the Holy See has expressly conceded the faculty; besides, if they have demanded them, they are bound to restitution.

I say 14°. Those who concede a dispensation by power delegated by the Apostolic See are to make, in the same dispensation, express mention of the pontifical indult (Can. 1057).

Nevertheless, the validity of the concession seems in no way to depend upon this mention.

I say 15°. When from a certain and authentic document, which is subject to no contradiction or exception, it has been established concerning the existence of the impediment of disparity of cult, order, solemn vow of chastity, bond, consanguinity, affinity, or spiritual kinship, and at the same time with equal certitude it has appeared that a dispensation over these impediments has not been given, in these cases, with the solemnities heretofore reviewed having been omitted, the Ordinary, the parties having been cited, will be able to declare the nullity of the marriage, with nevertheless the intervention of the defender of the bond (Can. 1990).

Against this declaration the defender of the bond, if he has prudently judged that the impediments of which in can. 1990 are not certain or that a dispensation over the same has probably intervened, is bound to provoke to the judge of the second instance, to whom the acts must be transmitted and who must be warned in writing that it is a question of an excepted case (Can. 1991).

The judge of the other instance, with the sole intervention of the defender of the bond, will decree in the same manner of which in can. 1990 whether the sentence is to be confirmed, or rather whether one must proceed in the cause according to the ordinary course of law; in which case he remits it to the tribunal of first instance (Can. 1992).

¹ Cf. Addenda, p. 1137, n. 96.

² Cf. Addenda, pp. 1151, 1111, 1120, nn. 127, 53, 73.

³ Cf. Addenda, p. 1091, n. 19; p. 1120, n. 74; p. 1121, n. 76.

⁴ Cf. Addenda, p. 1119, n. 71.

Question 1. What are the impediments in which the Pope himself can properly give no dispensation?

Resp. There are at least three, namely: consanguinity in the first degree of the direct line, bond, and impotence, because these are certainly of natural and divine law. Nevertheless, on account of most urgent causes, he can declare in some particular case that the Marriage is valid, notwithstanding some impediment concerning which it is doubted whether it is of natural or divine law, just as Clement XI and Urban VIII in fact declared. - Cf. S. Alphonsus, nn. 902 and 1119.

Question 2. What must be said concerning the Matrimonial Faculties which are conceded to Ordinaries by force of general concessions?

Resp. The Sacred Consistorial Congregation issued a decree concerning certain faculties of Ordinaries.

... Our Most Holy Lord Benedict XV, Pope, after consultation with a special meeting of the Most Eminent Cardinal Fathers, by this decree of the S. Consistorial Congregation established and sanctioned those things which follow:

(1) with the exception of places subject to the S. Congregation de Propaganda Fide, for which in their own time those things which will be opportune will be decreed, elsewhere, namely in all dioceses subject to common law, all faculties for the external forum conceded to Ordinaries, and which are contained in the Formularies and Brief reviewed above, will cease from the day 18 May of this year, and will no longer be able to be in use;

(2) nevertheless in more remote places and others to which, whether on account of the present war or for any other reason, notice of the present decree shall not have arrived in useful time, the Most Holy Lord holds ratified dispensations and ordinations perhaps conceded by Ordinaries by force of the old faculties; with this nevertheless remaining firm, that from the day of received notice, if the matter is still whole, they conform themselves to this decree;

(3) faculties for the internal forum given by the S. Penitentiary, and others conceded by reason of the present war, or obtained by Ordinaries for peculiar causes, are not comprehended under the disposition of this decree, and therefore are not abolished;

(4) concerning matrimonial dispensations, although by force of canons 1043-1045 Ordinaries can bestow opportune dispensations "when danger of death is urgent" and "as often as an impediment is discovered when now all things have been prepared for the nuptials, and marriage cannot be deferred without probable danger of grave evil," nevertheless the Most Holy Lord, with attention to the adjuncts of times and places, decreed that these things should further be indulged:

(a) that local Ordinaries in America, in the Philippine Islands, in the East Indies, in Africa outside the shores of the Mediterranean Sea, and in Russia, for five years from the day 18 May of this year, may be able to dispense from impediments of lesser degree which are reviewed in can. 1042, with the rules established in that chapter of the Code being observed; and likewise that they may be able to sanate in the root marriages invalidly contracted on account of some impediment of the same lesser degree, according to the rules laid down in chapter XI, title VII, book III of the Code "concerning the convalidation of marriage," the party conscious of the impediment having been warned concerning the effect of the sanation;

(b) that the same local Ordinaries may likewise be able, for five years, to dispense from impediments of greater degree, whether public or occult, even multiple, yet of ecclesiastical law, with the exception of impediments proceeding from the sacred order of the presbyterate and from affinity in the direct line from consummated marriage, as well as from the impeding impediment of mixed religion, if the petition for dispensation has been sent to the S. See and an urgent necessity of dispensing has supervened while recourse is pending. Nevertheless, in conceding dispensations in these cases, the Ordinary should always have before his eyes the rules established in the Code, book III, title VII, chapters 2, 3, and 4, concerning impediments in general and in species, and likewise the clauses customarily appended in marriages with Hebrews and Mohammedans; nor should he concede the dispensation unless he has taken care concerning the full observance of all these things according to the prescriptions of the sacred canons, and provides for the rights of the S. Congregation for the discipline of the Sacraments concerning payment of taxes;

(c) that the Ordinaries of France, of the three kingdoms of Great Britain, of Germany, Austria, and Poland, during the war, as often as access to the S. See is foreseen to be difficult or impossible for at least a month, may be able to use the same faculties which are reviewed above under letters (a) and (b).

The present things to avail by mandate of the Most Holy, anything contrary notwithstanding.

Given at Rome, from the Secretariat of the S. Consistorial Congregation, on the day 25 April 1918.

• C. Card. De Lai, Bishop of Sabina, Secretary.

• V. Sardi, Archbishop of Caesarea, Assessor.

In the Decree of the S. Consistorial Congregation of the day 2 August 1918, On the Extension of the Faculties of Certain Ordinaries During the War, among other things these are had:

But on the part of many Ordinaries of America it was observed that, from the lack of security of the sea on account of the present war, they were placed in a condition even worse than the Ordinaries of Europe reviewed under letter (c); and therefore they offered humble prayers that they might be fortified with an equal indult as those: for it is certain in the present state of affairs that more than a month is required for approaching the S. See from America. Moreover, the Most Holy Lord judged that these requests, which seemed just to him, should be granted; and therefore by the present decree of the S. Consistorial Congregation he benignly indulges, for the time of the present war, that the Ordinaries of the more remote places, of which under letter (a), may be able to dispense from greater impediments and from the impeding impediment of mixed religion, and to sanate in the root marriages invalidly contracted on account of a diriment impediment of which above, without being obliged to observe that condition and restriction placed under letter (b), that is, if the petition for dispensation has been sent to the S. See and an urgent necessity of dispensing has supervened while recourse is pending. Nevertheless individual Ordinaries must, at the end of any year, as long as this hard condition of things shall persevere, render an account to the S. Congregation of Sacraments concerning the species and number of dispensations which they themselves have conceded, and on that occasion satisfy the rights of the S. Congregation concerning payment of taxes. The present things to avail, while the adjuncts which now exist endure, and anything at all contrary notwithstanding. Given at Rome from the S. Consistorial Congregation, on the day 2 August 1918.¹

¹ Cf. Addenda, p. 1091, n. 20.

Question 3. When a dispensation has been conceded, is legitimation of offspring conceded?

Resp. Through a dispensation conceded over a diriment impediment, whether from ordinary power or from power delegated by general indult, but not through a rescript in particular cases, there is also conceded by that very fact legitimation of offspring, if any shall have already been born or conceived from those with whom dispensation is made, excepting nevertheless adulterine and sacrilegious offspring (Can. 1051).

In this canon the disposition of law concerning legitimation of offspring is declared. For either a dispensation over a diriment impediment is conceded from ordinary power, and then through the dispensation there is also conceded legitimation of offspring already born or conceived, excepting adulterine or sacrilegious offspring; or the dispensation is conceded from power delegated by general indult, and then through the dispensation legitimation is also conceded as above; or it is conceded from power by rescript in particular cases, and then through the dispensation legitimation is not conceded by that very fact.

I say 1°. For the liceity of a dispensation, a cause is always required, both on the part of the one conceding, whoever he may be, and on the part of the one asking. The reason is taken from this, that otherwise the power would not be applied for governing rightly. Besides, it is established from the Council of Trent, sess. 24, cap. 5, de Reform. Matrim., where it is said: "In marriages to be contracted either let no dispensation at all be given, or rarely, and let it be conceded for a cause and gratis."

I say 2°. For the validity of dispensations of greater degree, it is required that there be no subreption or obreption falling upon the motive or final cause, or also none simply essential, namely suppression of truth or expression of falsehood concerning those things which by law, custom, or style of the Roman Curia must necessarily be opened. The reason is that the superior is not judged to dispense except under the tacit condition: if the prayers rest upon truth.

A dispensation conceded from a lesser impediment is invalidated by no defect either of obreption or subreption, even if the one final cause set forth in the prayers was false.

Question 1. What are the just causes, namely canonical causes, that dispensation be made in diriment impediments?

Resp. To remove every doubt concerning this matter, the S. Congr. de Prop. Fide on the day 9 May 1877 issued an Instruction, where it enumerates these causes thus:

"1. Narrowness of place, whether absolute or relative, by reason only of the female petitioner, namely when in the place of origin or even domicile the woman's kinship has been so propagated that she cannot find another of equal condition whom she may marry, except a consanguineous or affine person, and for her to leave the fatherland would be hard.

2. Over-adult age of the woman, namely if she has already passed the 24th year of age and hitherto has not found a man of equal condition whom she can marry. But this cause does not support a widow who desires to pass to other nuptials. Now it is enough that it be established concerning over-adult age, nor is it necessary to prove that up to that age she did not find a man of equal condition whom she could marry. S. Pen. 11 Mar. 1902.

3. Deficiency or incompetence of dowry, namely if the woman does not actually have so great a dowry that she can marry an outsider of equal condition, who is neither consanguineous nor affine, in the proper place in which she dwells. This cause urges more if the woman exists wholly undowered, and a consanguineous or affine man is prepared to take her as wife, or even conveniently to endow her wholly from his own resources.

4. Lawsuits over succession of goods already arisen, or grave or imminent danger of the same. If the woman sustains a grave lawsuit over succession of goods of great moment, and there is no other who would take up a lawsuit of this kind upon himself and pursue it at his own expense, except the one who desires to take her as wife, a dispensation is usually conceded; for it is of interest to the commonwealth that lawsuits be extinguished. To this another cause comes very near, namely Dowry involved in lawsuits, when, that is, the woman is destitute of another man by whose help she may be able to recover her goods. But a cause of this kind suffices only for the more remote degrees.

5. Poverty of a widow who is burdened with numerous offspring, and the man promises to support her. But sometimes by the remedy of dispensation assistance is given to a widow only for this cause, that she is younger, and is placed in danger of incontinence.

6. The good of peace, under which name come not only treaties between kingdoms and Princes, but also the extinction of grave enmities, quarrels, and civil hatreds. This cause is adduced either for extinguishing grave enmities which have arisen between the consanguineous or affine relatives of the contracting parties, and which would be wholly composed by the celebration of Marriage; or when grave enmities have flourished between the consanguineous and affine relatives of the contracting parties and, although peace between them has already been entered, nevertheless the celebration of Marriage would contribute greatly to the confirmation of that peace.

7. Excessive, suspect, dangerous familiarity, and also cohabitation under the same roof, which cannot easily be impeded.

8. Intercourse previously had with a consanguineous or affine woman or another person laboring under an impediment, and pregnancy, and therefore legitimation of offspring, namely that provision be made for the good of the offspring itself and the honor of the woman, who otherwise would remain unmarried. This indeed is one of the more urgent causes, on account of which dispensation is usually given even to plebeians, provided the intercourse was not perpetrated under hope of an easier dispensation; which circumstance would have to be expressed in the supplication. Those things which are said here concerning the necessity of manifesting this circumstance were recently abrogated by the Supreme Pontiff Leo XIII, as is clear from the Response of the S. Office given on the day 25 June 1885. - Cf. Third Plenary Council of Baltimore, p. 253.

9. Infamy of the woman, arisen from suspicion because she, too familiar with her consanguineous or affine relative, is thought to have been known by the same, although the suspicion is false, namely when, unless Marriage is contracted, the woman would remain gravely defamed or unmarried, or would have to marry a man of unequal condition, or grave damages would arise.

10. Revalidation of Marriage.

11. Danger of mixed Marriage, or of being celebrated before a non-Catholic minister. When there is danger that those wishing to contract Marriage in some even of the greater degrees, from denial of dispensation, may approach a non-Catholic minister for celebrating nuptials, the authority of the Church being spurned, there is found a just cause of dispensing; because there is present not only very grave scandal of the faithful, but also fear of perversion and defection from the faith of those acting thus and despising the impediments of Marriage, especially in regions where heresies rage with impunity. This S. Congregation taught in the Instruction given on the day 17 April 1820 to the Archbishop of Quebec. Likewise, when the Apostolic Vicar of Bosnia had asked whether he could bestow a dispensation on those Catholics who allege no other motive than insane love, and at the same time it is foreseen that, the dispensation being denied, they are about to enter wedlock before an infidel judge, the S. Congregation of the S. Office, in Feria IV, 14 Aug. 1822, decreed: 'it must be answered to the petitioner, that in the case set forth he should use the faculties committed to him in Form II, according as he shall judge expedient in the Lord.' The same must be said concerning the danger that the Catholic party with a non-Catholic may dare to celebrate Marriage.

12. Danger of incestuous concubinage. From the Instruction of the year 1822 recalled above, it shines forth that the remedy of dispensation must be applied lest someone become filthy in concubinage with public scandal and evident danger of eternal salvation.

13. Danger of civil Marriage. From the things said it follows that the probable danger that those who seek a dispensation, if it is not obtained, are going to celebrate Marriage merely civilly, as they say, is a legitimate cause of dispensing.

14. Removal of grave scandals.

15. Cessation of public concubinage.

16. Excellence of merits, when someone, either by struggle against the enemies of the Catholic faith or by liberality toward the Church or by doctrine, virtue, or in another way, has deserved very well of Religion."

Question 2. What things must necessarily be expressed in the petition for dispensation?

Resp.

1. The name and surname of the petitioners; the diocese of origin or of actual domicile or quasi-domicile. Canon 47 is to be recalled: Rescripts are not rendered invalid on account of an error in the name of the person to whom or by whom they are conceded, or of the place in which the person dwells, provided that in the judgment of the Ordinary there is no doubt concerning the person or the matter itself.

2. The species, even the lowest, of the impediment: whether it is consanguinity, or affinity, or public honesty; whether the direct or collateral line; in the impediment of crime, whence it proceeds; filiation in spiritual kinship.

3. The degree of consanguinity or affinity. A dispensation avails in these impediments, although in the petition or in the concession an error concerning the degree has crept in, provided the degree really existing is inferior, or although another impediment of the same species in an equal or inferior degree was passed over in silence. - Cf. Can. 1052. Impediments of lesser degree are: 1°. Consanguinity in the third degree of the collateral line; 2°. Affinity in the second degree of the collateral line. Cf. Can. 1042. A dispensation conceded from a lesser impediment is invalidated by no defect either of obreption or subreption, even if the one final cause set forth in the prayers was false (Can. 1054).

4. The degree of public honesty. - Cf. above, N. 874, Q. 14.

5. The number of impediments, for example, if there is double or multiple consanguinity or affinity, or if besides kinship there is also affinity, or any other impediment whatever, whether diriment or impeding.

6. Various circumstances, namely whether the Marriage is to be contracted or has been contracted; if already contracted, it must be opened whether in good faith, at least on the part of one, or with knowledge of the impediment; likewise whether with denunciations premised, and according to legitimate form; or whether under hope of more easily obtaining the dispensation.

Here also it will be worth the labor to recall canon 37, placed above, n. 123, which perhaps in certain more difficult cases could be of use. A rescript can be obtained for another even besides his assent; and although he himself can choose not to use the grace conceded by rescript, nevertheless the rescript avails before his acceptance, unless something else appears from the clauses appended.

Concerning certain abuses and irregularities in the concession of matrimonial dispensations, let the letters given by the Sacred Congregation de Propaganda Fide on the day 2 Aug. 1901 be consulted. Amer. Eccl. Rev., vol. 26, p. 200.

Question 3. Does the dispensation cease, the final cause of the dispensation totally ceasing, for example, if the offspring to be legitimated through Marriage has died?

Resp. Negatively, if the cause ceases when the dispensation has already been expedited and communicated by the delegate to the supplicants, even if it ceases before the celebration of Marriage, namely before the begun use of the dispensation. The reason is that as soon as the dispensation was communicated either to the betrothed themselves or to another person, for example, to the Pastor acting in their name, the impediment was already removed. But otherwise one must say if the cause ceases at any other moment before the removal of the impediment, unless the dispensation is pontifical from an impediment of lesser degree.

The Holy See has committed the business of granting matrimonial dispensations to certain Roman Congregations, as is clear from the Constitution previously commemorated, Sapienti Consilio: I. 1. 5. "The faculty of the Holy Office remains entire for taking cognizance of those things which are involved concerning the Pauline privilege, and the impediments of disparity of cult and mixed religion," besides those things which touch dogmatic doctrine concerning marriage, just as also concerning the other Sacraments. I. 3°. 2. 3. To the Congregation for the discipline of the Sacraments are attributed all those things which up to this point were accustomed to be decreed and conceded by other Congregations, Tribunals, or Offices of the Roman Curia, "as dispensations in the external forum both for the poor and for the rich, sanations in the root, dispensation over ratified marriage, separation of spouses, restitution of birth or legitimation of offspring"; it resolves questions concerning the validity of marriage, with the right of the Holy Office preserved. II. 1. The Tribunal of the Sacred Penitentiary bestows dispensations, absolutions, sanations for the internal forum. I. 6°. 6. The S. Cong. de Prop. F. had united to itself the congregation for the affairs of oriental rites, for which power remains entire, as before; an example of this is the Decree of 17 Aug. 1914 concerning the Greek-Ruthenians in the federated states. I. 5°. 1. The S. C. for Religious dispenses in the vow of chastity as regards religious members. Cf. Can. 246-258.

Question 1. In what way must a dispensation be sought if two impediments are present, of which one is public, the other occult?

Resp. The dispensation of the public impediment must be sought from the S. C. Sacr., the other being kept silent, which must remain secret, and both must be expressed in the supplication to the Penitentiary, at the same time setting forth the other dispensation obtained from the S. C. Sacr. - Cf. S. Alphonsus, n. 1139.

Question 2. In what way must the dispensation be executed?

Resp. No formula is prescribed under pain of invalidity or under precept, for none is had in the Roman Ritual. Nevertheless it can be done in the following manner: (a) As regards a dispensation of the S. Penitentiary, after absolution these or similar words are to be said: By apostolic authority I dispense thee over the impediment N., which thou hast incurred, so that thou mayest be able to enter Marriage, or to perfect it once entered, and I render legitimate the offspring received, or to be received. In the name of the Father, etc. But if the dispensation is from a vow of chastity, let it be said: Moreover, the vow of chastity which thou hast emitted, by dispensing I commute into the works which I have prescribed to thee, so that thou mayest be able to contract Marriage and to use it. In the name, etc. (b) As regards a dispensation of the S. C. Sacr., it is conceded either in gracious form or in commissorial form. If the dispensation is of lesser degree, there is no difficulty from the cause. But when the truth of the motive cause is required for validity, that cause must exist then, when the dispensation is actually conceded.

§ 1. If in a rescript the mere ministry of execution is committed, the execution of the rescript cannot be denied, unless either it is manifestly clear that the rescript is null by defect of subreption or obreption, or in the rescript there are appended conditions which the executor knows have not been fulfilled, or the one who obtained the rescript seems so unworthy, in the judgment of the executor, that the concession of grace will be for the offense of others; if this last thing happens, the executor, execution having been interrupted, should at once make the rescriber more certain concerning this matter.

§ 2. But if in the rescript the concession of the grace is committed to the executor, it belongs to him, according to his prudent judgment and conscience, to concede or deny the grace (Can. 54).

The executor of a rescript functions invalidly in his office before he has received the letters and recognized their authenticity and integrity, unless prior notice of the same has been transmitted to him by authority of the rescriber (Can. 53).

You Will Resolve. What if a confessor in confession detects that the marriage of the penitent is null on account of an occult impediment and unknown to the penitent himself? Let him prudently be silent; indeed to admonish the one confessing can bring forth very grave inconveniences; meanwhile let him skillfully and energetically inquire, in the sacred tribunal itself, into the mind of the penitent with relation to his family life. But if he finds him not disposed to those things which would have to be done in order that the marriage be validated, let him continue to be silent, and dispose him by frequent use of the Sacraments, although a rather long time may be required; at length, when the penitent is found wholly prepared to renew consent, let him narrate the matter to him in kindly words, extolling the grace of the Sacrament, and obtain the dispensation.

But if the penitent is conscious of some occult impediment, let him altogether admonish him of his obligation of avoiding the rendering of the debt until the dispensation is obtained. Once it has been obtained and notified, that spouse should duly furnish consent, if it is a simple dispensation; but if it is a sanation in the root, he should do those things which are enjoined. But what if the person cannot withdraw from the co-party, the husband, nor avoid the debt, except with danger of most grave harm? Surely the case is difficult. If it is a question of entering or convalidating marriage, let the following canon 1045 be seen:¹

§ 1. Local Ordinaries, under the clauses established at the end of can. 1043, can grant a dispensation over all impediments of which in the cited can. 1043, as often as an impediment is discovered when now all things have been prepared for the nuptials, and marriage cannot be deferred, without probable danger of grave evil, until a dispensation is obtained from the Holy See.

§ 2. This faculty also avails for the convalidation of a marriage already contracted, if there is the same danger in delay and time is not available for recurring to the Holy See.

§ 3. In the same circumstances of things, all those of whom in can. 1044 enjoy the same faculty, but only for occult cases in which not even the local Ordinary can be approached, or not except with danger of violation of secrecy. Let canons 1043 and 1044 be accurately read.

¹ Cf. Addenda, p. 1150, n. 125.

Most Blessed Father,

John N. and Anna N., of the parish commonly called N., Diocese N., desire to enter Marriage with one another, but because there stands in the way the impediment (here is placed the impediment, whatever it may be), therefore they humbly beg from Your Beatitude the dispensation necessary for them. The reasons are: 1°. the age of the girl, who, now having been born twenty-five years, would probably not find another man whom she could suitably marry; 2°. the Christian virtues existing in each petitioner (let other causes be placed if they are present).

Most humbly kissing the feet of Your Holiness, with the highest reverence and devotion by which it is fitting, I remain,

Of Your Holiness Most submissive, N. N.

Given at N., on day N., in year N.

Note 1°. If the petitioners are poor, after the reasons have been set forth, let it be added: The petitioners exist poor and miserable, and live only from their own labor and industry.

Note 2°. The supplication composed by the Pastor of the petitioners must be sent to the Bishop. But the Bishop, or in his place the Vicar General, sends it, furnished with testimony, seal, and episcopal signature, to Rome to his mandatary who solicits the dispensation, and transmits it to the Bishop.

Most Eminent Prince,

It is most humbly set forth to Your Eminence, on the part of the petitioners Titius and Caia, that they intend to contract Marriage, but that Titius, being married, carnally knew Caia by perfect intercourse while his own wife Sempronia was still living, and they mutually gave faith to each other concerning Marriage to be contracted between them, if Sempronia, the wife of Titius, should die first; and she also died first through poison administered by Titius. But since from the premises the impediment of crime has arisen, and therefore they cannot contract Marriage either licitly or validly, the petitioners supplicate for the grace of dispensation over that impediment of crime, so that they may be able publicly to contract Marriage between themselves and afterward remain in it licitly and freely, and the offspring may be decreed legitimate. The impediment is wholly occult, and there is urgent danger of perseverance in sin, indeed even of grave scandal, if they cannot be coupled in legitimate Marriage. Wherefore, for the quiet of their conscience, grieving exceedingly over the premises, they humbly supplicate Your Eminence, that concerning these matters you may deign to provide, by Apostolic authority, an opportune remedy.

Reverently kissing the hands of Your Eminence, with the highest devotion by which it is fitting, I remain,

Of Your Eminence, Most obedient and most devoted, N. N. Pastor N. N.

Given at Baltimore, N. N. N.

Most Eminent Prince,

Titius, being married, carnally knew Caia by perfect intercourse while his own wife Sempronia was still living, and they mutually gave faith to each other concerning Marriage to be contracted between them, if Sempronia, the wife of Titius, should die first; and, after Sempronia had died first through poison administered by Titius, conscious (or ignorant, or Titius conscious or ignorant, or Caia conscious or ignorant) of the impediment, in the face of the Church, with proclamations premised (or dispensed), or, with no proclamations premised, before a civil Magistrate or a heretical herald, they contracted Marriage and consummated it by carnal intercourse (if each party or either party still perseveres in good faith, let that be expressed; likewise whether each party or either party, conscious of the impediment, now abstains from intercourse or nevertheless has persisted in it). Wherefore, since the impediment is wholly occult and separation cannot be made without scandal, I most humbly beg Your Eminence that you benignly indulge a dispensation to them, insofar as they may be able validly to contract.

Of Your Eminence, etc.

Note. Externally, when the letter has been signed, the inscription should be placed thus: To the Most Eminent and Most Reverend Lord D. S. R. E. Cardinal Major Penitentiary, Rome. It will be useful to give the letter to one's own Bishop, who will take care concerning transmission.

The formulae which follow will be useful for petitioning dispensations from our Ordinaries according to the faculties conceded to them.

Most Illustrious and Most Reverend Lord,

John N. and Anna N. of this my parish, or of the parish or mission N., of this Diocese, or Diocese N., consanguineous in the third equal degree in the transverse line, desire to enter Marriage with one another, and therefore they humbly beg from Your Most Illustrious Lordship the dispensation necessary for them. - The reasons are (here let the reasons and the circumstances necessarily to be expressed, if any are present, be set forth).

Reverently kissing the hands of Your Lordship, with the highest devotion by which it is fitting, I remain,

Of Your Most Illustrious Lordship, Most devoted servant, N. N. Pastor N. N.

Given at N. N.

Note 1°. If the betrothed belong to diverse Dioceses, this is more rightly expressed, and indeed immediately after the family name of each. Besides, the dispensation is more suitably petitioned through the Pastor of the bride, if the impediment is common to each of the contracting parties, as is the impediment of consanguinity.

Note 2°. If the degree of consanguinity is diverse or mixed, or several public impediments are given at the same time, all, as is clear, must be clearly expressed.

Note 3°. If the circumstances necessarily to be expressed are occult, they cannot, as is clear, be expressed in this same supplicatory libellus.

Most Illustrious, etc.,

Titius and Caia, while the first wife of Titius was still living, carnally knew one another and mutually gave faith to each other concerning Marriage to be contracted between them, if the wife of Titius should die first; she now being dead, but with neither of the petitioners plotting against her death, they desire to contract Marriage between themselves. But since the impediment of crime proceeding from adultery and promise is occult, and unless Marriage is contracted between them there threatens danger of scandals or of perseverance in sin, therefore, for avoiding these things and for the quiet of their conscience, they humbly supplicate that Your Most Illustrious Lordship may deign most clemently to impart to them the grace of dispensation.

Of Your Lordship, etc.

Most Illustrious, etc.,

It is humbly set forth to Your Most Illustrious Lordship on the part of the devout petitioners John N. and Anna N. of the parish ... Diocese ... (see above), that they, formerly ignorant that some impediment existed between them by which they could not be matrimonially coupled to each other, with no impediment detected or denounced, contracted, and solemnized it in the face of the Church and consummated it by carnal intercourse. But afterward it came to their notice that they are joined to each other in the third degree of consanguinity touching the second, on account of which they abstained from carnal intercourse (or - and nevertheless persisted in the same carnal intercourse). But since the aforesaid petitioners cannot remain in a Marriage of this kind without dispensation, and if separation were made between them, grave scandals could arise therefrom, they supplicate that, the pardon of the ecclesiastical law having been most clemently given to them, they may be able to enter Marriage in the face of the Church and afterward live in it licitly and freely.

Of Your Lordship, etc.

Most Illustrious, etc.,

It is humbly set forth to Your Most Illustrious Lordship, in the name of the petitioners John N. and Anna N. of the parish N., Diocese N., that they, formerly knowing themselves to be joined in the second (or third, etc.) equal (or unequal) degree of consanguinity, petitioned from Your Most Illustrious Lordship a dispensation for validly contracting Marriage between themselves, the said impediment notwithstanding; but having suffered refusal, blinded by insane lust, they contracted and consummated incestuous Marriage before a civil magistrate (or heretical herald), from which already (let the number be placed) they have received children. But now by the grace of God, greatly fearing the danger of eternal salvation, they weep over the life passed before and desire to repair it. But since, if separation were made between them, grave scandals would arise therefrom and great harm for their children; and since they cannot remain in Marriage without dispensation, they supplicate that Your Most Illustrious Lordship may deign to dispense with them, insofar as, in the face of the Church, yet with the public denunciations omitted, they may contract Marriage with each other, consent having been renewed, and may licitly remain in it.

Of Your Lordship, etc.

Most Illustrious, etc.,

Caia, of the Diocese N., ignorant of the impediment of crime arisen from adultery with a promise of marriage, contracted Marriage in the face of the Church and with denunciations premised, in good faith, with a man bereaved of his wife. Wherefore, since they cannot be separated without scandal, and danger of incontinence lies beneath, the putative husband being wholly ignorant of the impediment, and therefore matrimonial consent cannot be renewed without grave danger of disagreements; hence she humbly supplicates for the remedy of dispensation over an impediment of this kind, wholly occult, in the root of the Marriage, so that without renewal of consent the Marriage may be able to be sanated.

Of Your Lordship, etc.

Most Illustrious, etc.,

John N. and Anna N., desiring to enter Marriage between themselves, earnestly ask that a dispensation over the three proclamations be conceded to them. The reasons are (let them be set forth sincerely).

Of Your Lordship, etc.

Note. If the causes for petitioning the dispensation are not honorable, or at least not public, let no names be placed except fictitious ones, namely: TITIUS AND BERTHA.

Most Illustrious, etc.,

Anna N., a Catholic of parish N., desires to enter Marriage with Robert N. from place N., attached to sect N. (or a baptized non-Catholic). - The non-Catholic party before me under faith of oath promised that all infants of each sex to be born from that Marriage are to be baptized and educated in the Catholic faith, and that for them, as also for the co-party, the exercise of the Catholic religion will be wholly free. Besides, the Catholic party promised that she, with her powers, would take care that, insofar as it will be in her, the other party be converted to the true Faith. Wherefore she humbly supplicates Your Most Illustrious Lordship, that you may deign to concede to her, by Apostolic authority, a dispensation over this impediment. The causes are (let the causes be set forth, for example, various attempts that the female petitioner renounce such a Marriage; founded hope of conversion of the non-Catholic party, etc.).

Of Your Lordship, etc.

1. If someone claims his right from validly contracted betrothals against a party about to enter marriage with another, must the marriage be suspended until there has been action concerning the just cause of dispensation from the prior betrothals and concerning reparation of damages, if any is due? (Can. 1017, § 3).

Resp. Negatively, or that an action concerning the just cause of dissolution of betrothals is no longer admitted; but that an action of reparation of damages does not suspend the celebration of marriage.

2. Whether the action of reparation of damages, of which in can. 1017, § 3, pertains to the ecclesiastical forum or to the civil?

Resp. The action of reparation of damages, of which in can. 1017, § 3, is of mixed forum.

3. If the bride or bridegroom are found ignorant of Christian doctrine, is there place for rejecting them from marriage, or for deferring marriage until instruction? (Can. 1020, § 2.)

Resp. Let the pastor observe the prescription of canon 1020, § 2; and while he performs those things which the Code prescribes to be performed, let him diligently teach to the ignorant betrothed at least the first elements of Christian doctrine; but if they refuse, there is no place for rejecting them from marriage according to the norm of canon 1066.

4. If the party after attained puberty has dwelt for more than six months in very distant and separated shores, from which a longer time is required in order that regular attestation of liberty of status be had, yet the celebration of marriage is urgent, does there suffice in the case, for making certain the liberty of status, the oath of the party with the testimony of two, or, if two cannot be had, of at least one, who had dwelt with him in those regions? (Can. 1023, § 2.)

Resp. The matter is remitted to the prudent judgment of the Ordinary, who can prescribe other proofs, not excluding a supplementary oath, according to the norm of canon 1023, § 2.

5. What if illicit and occult intercourse preceded the birth of the woman to be married, concerning whom it could be doubted whether she is the daughter or sister of the other party? (Cann. 97, § 1, 1077, etc.).

Resp. Provision has been made by can. 1076, § 3.

6. Is the force of the new Code retroactive in these things which are modified concerning betrothals and impediments both impeding and diriment of marriage, so that any right acquired by force of valid betrothals can in no way be claimed, except insofar as the new Code concedes, and contracted impediments modified by the new Code need no dispensation? (Cann. 4, 10.)

Resp. The Code, even as regards betrothals and impediments, does not have retroactive force; but betrothals and marriages are governed by the law in force when they were contracted or will be contracted, yet with canon 1017, § 3 preserved as regards an action from betrothals.

7. What must be said concerning marriages, if any are null from the head of impediments abrogated by the new Code: do those marriages become valid by the very promulgation of the new Code, or even after the said promulgation do they need dispensation, sanation, etc.? (Cann. 4, 10.)

Resp. Negatively to the first part; affirmatively to the second.¹

8. Whether spiritual kinship contracted before the day of Pentecost of the year 1918 beyond the limits now defined by the new Code in can. 768, from the aforesaid day of Pentecost ceases by the fact itself as regards all effects, or only ceases to be an impediment to marriage? (Cann. 768, 1079.)

Resp. Negatively to the first part; affirmatively to the second.

(A. A. S. Year X, n. 8 - 1 August 1918.)

¹ Cf. Addenda, p. 1138, n. 97.

§ III. — Of obreptive and subreptive dispensation.

Obreptive is said of what is obtained by alleging a falsehood; subreptive, by concealing the truth.

I say 1°: If the obreption or subreption fall upon the principal cause of the dispensation, the dispensation is null. So decrees Innocent III, cap. Super litteris, Decretal. lib. I, tit. 3, de rescriptis; and this at the very least is signified by the usual clause of dispensations: « Si preces veritate nitantur », which, were it not appended, must always be understood, from cap. Ex parte, same title. The reason also is plain; because the superior intends to dispense only on account of this cause, which is principal, and without which he would not dispense. Therefore, this failing, the dispensation falls. For the same reason, the same must be said if the obreption or subreption fall upon that without which, although it be not the principal cause, the superior would not dispense in such manner and form, but with an added condition and burden: as if a rich man seek dispensation in forma pauperum, as I shall say below.

I say 2°: If the obreption or subreption fall upon an impulsive cause only and less principal, from the malice of the allegant, it is more probably null; if from the simplicity and ignorance of the allegant, it is valid. Thus expressly distinguishes and ordains Innocent III, cited cap. Super litteris, de rescriptis.

I say 3°: Subreption or concealment of truth pertaining to the thing per se and intrinsically, or error concerning the moral substance of the matter, renders the dispensation null: as if you have two affinities or consanguinities on the side of either parent, and express only one; if you ask to be dispensed over an affinity and it is consanguinity, or over a consanguinity and it is affinity, or over the fourth degree and it is the third; because, although perhaps the superior would have dispensed equally had you expressed the matter as it is, he is nevertheless held to concede precisely what is asked, and nothing else. More probable, however, I judge — against certain authors — is that if dispensation be sought for the third degree, and it is the fourth, it is valid; because dispensation of the whole is dispensation of the part contained in the whole, and the fourth degree is contained in the third.

I said, « Error concerning the moral substance of the matter »; because, if there were error concerning the physical substance, and nothing pertaining to the dispensation, it would not vitiate the dispensation: as if you call yourself an advocate when you are a physician, or there be error in the name, Peter being put for Paul; for the superior intends to dispense with the petitioner himself.

I say 4°: When dispensation is sought at the Roman court, subreption or concealment of what the law or the style of this court requires vitiates the dispensation; because, although it be not the principal cause, it is nevertheless the condition sine qua the Pontiffs do not intend to dispense. Whence

You will gather 1° that, if you seek at the Roman court dispensation over consanguinity, not expressing the incestuous intercourse, if it preceded, the dispensation is null, from the style of the court; likewise, if the marriage has been contracted or consummated; likewise, if you have contracted with knowledge of the impediment and with rash hope of obtaining the dispensation more easily, and these you do not express, there is no dispensation.

It is to be observed, as to the incestuous intercourse, if it be occult, that dispensation is sought in the sacred Penitentiary, the names suppressed, to avoid infamy or other damage. But when the impediments are manifest, or easily made manifest, dispensation is granted not by the Penitentiary but by the Dataria, and the names must be expressed; because, since a public impediment is concerned, the matter can be brought to a contentious forum, and the decree of the Dataria must be published. In the Penitentiary the commission of dispensing is directed to the confessor, who shall be a master or professor in theology; in the Dataria, to the official of the place. In the Penitentiary all things are granted gratuitously; in the Dataria is paid the mulct, to be expended on the propagation of the faith, or on other pious uses.

You will gather 2° that, when there are several impediments, for instance consanguinity and affinity, or several consanguinities or affinities, there is no dispensation if it be sought separately, now for one, afterwards for the other; but it must be sought for all together. Likewise there is none, if it be not expressed in which line the relationship lies, whether direct or transverse, and in what degree, equal or unequal. Similarly in spiritual cognation, if it be not expressed whether it be spiritual daughterhood or compaternity, whether one baptized, or only stood sponsor. The same say of confirmation. Likewise none, if dispensation be sought over the crime of uxoricide, without expressing that like dispensation was already obtained. Likewise, if one dispensed over defect of birth for Orders and benefice afterwards seeks dispensation over plurality of benefices, not again expressing defect of birth. Likewise, if dispensation be sought in forma pauperum, and the petitioner be not truly poor. And all these things and certain others come from the style of the Roman court.

Dispensation is sought in a threefold form: in forma pauperum, of honest men, and of nobles. That some be judged truly poor, they must be such that they live only from their labor and industry; and therefore it must be expressed in the petition, so that, if that alone be omitted, the petition is useless. Poverty on both sides must be expressed in the petition.

Daelman, doctor of Louvain, quaest. ultima, observat. ultima, de Matrimon., writes that those should be judged poor who have two or three thousand florins, whether in movables or immovables: both because, if they petitioned in forma honestorum, they would have to be stripped of the greater part of this sum for the dispensation, for which a thousand or two thousand florins are asked, according to the closeness of the degrees, and thus they would become poor; and because these few goods are for them as it were the instrument whereby they can work fruitfully by labor and industry, drawing thence no fruits, or fruits so small that they are reputed as nothing. The theologian cited adds that the Apostolic Nuncio judges thus when petitioners are sent to him by parish priests.

You will ask 1° whether, when the Romans append in the dispensation other causes than those which the petitioner set forth, those causes must be true, that the dispensation be valid.

I answer. Negatively, but it suffices that those proposed by the petitioner be true; for it is not on account of anything else that he asks to be dispensed, and in truth on account of those he is dispensed: but others are appended from the style of the court, and lest the dispensation appear given for lighter causes.

[You will ask 2° whether a dispensation can be validly obtained not only for one who knows not, but also for one who wills not.

I answer. Affirmatively, if necessity or at least sufficient motive be present. This right reason dictates, and it seems to be drawn from cap. Si motu proprio, de praebendis in 6°. But the dispensation must be accepted by him dispensed. Otherwise, however, must it be said of dispensations impetrated from the Roman Penitentiary, unless they be sought by persons joined or blood relatives within the fourth degree, for matrimony, or at least by the confessor, on account of motives which he judges grave. So S. Ligor., lib. I, n. 186.]

You will ask 2° whether, the dispenser dying, the dispensation ceases.

I answer. Negatively; because grace does not expire at the death of the grantor, cap. Si super, de officio delegati in 6°. Which is true also although the dispensation have been conceded subject to revocation; because the living dispenser revoked not, nor does the dead man revoke. Otherwise, if he had said: « Until I will », or: « Until it please me »; for the dead man no longer wills, nor does it any longer please him.

[You will ask 4° how dispensation ceases.

I answer. It ceases in three ways, namely: by cessation of the cause, by revocation, by renunciation.

1° If the final cause cease at the time when the letters of dispensation are expedited, the dispensation has no effect. For the superior is not held to dispense without cause; and from cap. Ex parte, Decretal. lib. I, tit. 3, de rescriptis, « in letters of this kind this condition is to be understood, even if it be not appended: Si preces veritate nitantur ». — If the final cause cease after the expedition of the letters, but before their publication and execution, since the commissary cannot dispense in the name of the superior except under the same condition and restriction, although the dispensation was at first valid, it is then affected with nullity. — If the final cause cease after execution of the letters, a distinction must be made. Either the matter consists in one act, and the dispensation removes only an impediment; and then, the impediment removed, it cannot revive through a change of circumstances, according to rule 73 juris in 6°: « A deed legitimately done ought not to be recalled, although a case afterwards arise whence it could not have been begun. » Or the matter has successive course and coalesces out of several acts, as the quadragesimal fast, the recitation of the canonical hours; and then, since the dispensation is virtually multiple, it undoubtedly ceases when its cause is taken away, if namely he who obtained it on account of weak health afterwards perfectly recover. — If the final cause be held likely to endure forever, the dispensation remains. Thus he who was dispensed from irregularity to receive sacred Orders, even if for a long time he may be unwilling to receive them, can afterwards, his mind changed, be legitimately promoted. — But if only the impulsive cause have ceased, the dispensation does not vanish, unless it were expressly conceded under this condition.

2° Dispensation altogether ceases through revocation expressly made by the superior, because obligation or release from obligation hangs upon him. Revocation without just cause would indeed be illicit, but nevertheless valid. S. Ligor., lib. I, n. 197, with others, holds that the sin of the superior is then venial only. An inferior prelate who dispensed by delegation does not validly revoke the dispensation without cause.

3° The one dispensed can renounce the grace obtained, with the assent of the superior, before he has secured its effect, and can use it no longer. Excepted: if the renunciation redound to the damage of another or of the community in whose favor the dispensation was bestowed, or if the prelate, for just cause, command the subject to make use of the dispensation.]

IX. QUESTION VII. What are the just causes of dispensation? ANSWER. Several are assigned. 1. The removal of suits, scandals, and quarrels, and the good of peace; 2. If in the town in which a woman dwells she cannot conveniently find an equal whom she may marry; 3. A defect of dowry, when a girl finds a blood-relation who will espouse her without a dowry; 4. The preservation of riches in the same family; 5. The repairing of a matrimony contracted in good faith; 6. The request of Kings and great Princes; 7. Excellence of merits toward the Church; 8. The furnishing of money in aid of the Church.

X. Whether all these causes be lawful, let those judge whom it concerns; the last does not approve itself to me, concerning which Fr. Viva, question 11, article 2, no. 4, says: Sánchez nevertheless notes that he who seeks matrimonial dispensations without a cause by exhibiting a copious alms does not sin, just as neither does he who without a cause uses what he has sought. The reason, because although they be sought without a cause, they are nevertheless not granted without a cause. Is this a robust reason? They are not granted without a cause, because they are granted on account of money. What will Lutherans and Protestants not prate, reading such things? Will they not blurt out that these laws are money-making? But we shall shake their calumny by opposing the Tridentine Synod, which established that dispensations are to be granted: 1. Rarely; 2. From a cause; 3. Gratis. Nor does it matter that some interpret the laws less rightly.

Titius, a missionary priest, had two parishioners related in the second degree mixed with the third degree of consanguinity who, after entering betrothal and having an illegitimate child, wished to contract marriage. Titius said that he would seek a dispensation because of the child to be legitimated and because of the smallness of the place, which he soon obtained from the Bishop. On the following Sunday the banns were proclaimed in church and at length the marriage was contracted, but not before the death of the child, nor was any mention of the obtained dispensation made to the spouses. Having heard these things, Paul, another missionary, began to doubt the validity of the marriage. Hence it is asked:

1. Is a cause for a matrimonial dispensation admitted, and what kind?

2. For whom is smallness of the place a canonical cause?

3. How must a matrimonial dispensation be executed?

4. What is to be said of the case?

1. Are causes for dispensation admitted in matrimonial impediments and what sort?

Not, of course, for impediments of natural or divine law, nor for all impediments of ecclesiastical law, but the Church does admit causes for dispensation from the remoter degrees of consanguinity and affinity, public honesty, spiritual relationship, occult crime, etc. Canonical causes are required for dispensations, such as: smallness of the place, advancing age of the woman, deficiency or absence of dowry, etc., as put down in the Instruction of Propaganda May 9, 1877.¹

1 Manual of Moral Theology, vol. ii, 339 ff.

2. For whom does smallness of place serve as a canonical cause?

For the female petitioner alone, as a general rule.²

2 Ibid., 343.

3. How is a matrimonial dispensation to be executed?

No special form is prescribed for the execution of a dispensation. In the internal forum the priest should carefully note and execute the clauses of the rescript, and tell the penitent that he is dispensed. In the external forum, the bishop after the causes alleged for the dispensation and the other particulars have been verified, and the dispensation drawn up and signed, will either execute the dispensation himself by calling the parties before him, absolving them from censures, and telling them that they are dispensed; or he will commit these duties to the parish priest.³

3 Gasparri, De Matrim., vol. i, n. 392 seqq.

4. The case. The impediment under which the parties labored is one of those which are called minoris gradus, and from which bishops can usually dispense by special faculties granted to them by the Holy See. We presume, 'therefore, that the dispensation was granted by the bishop. It took its effect and removed the impediment when the document was signed by the bishop. At that time apparently the child was alive, so that both causes alleged for the dispensation subsisted when it was granted, and although one of them ceased before the marriage, this fact did not affect the validity of the dispensation. The marriage, therefore, was validly contracted, although the parish priest should have executed the dispensation in the manner described above.

Balbus, a Catholic, approaching the feet of Caius, his confessor, sets forth the following facts. Now thirty years of age, in the preceding year, in contempt of the laws of the Church, he contracted marriage before a Protestant minister with Titia, a non-Catholic widow forty years of age and burdened with three children from a prior marriage. Nor were they ignorant of the impediments, for Balbus was related to Titia in the unequal collateral third degree mixed with the second; moreover, he had intercourse with Bertha, Titia’s sister. Balbus, now penitent, asks Caius to set the matter in order after obtaining dispensations, but affirms that he has revealed the sin with Bertha to Caius alone.

1. What is the difference between a public and an occult impediment?

2. What are the principal reasons which the Holy See is accustomed to regard as sufficient for granting dispensations?

3. How can a dispensation become invalid through subreption or obreption?

4. How many dispensations are required in the case; what causes can be alleged by Caius; and what must Caius do?

1. What is the difference between a public and occult impediment?

Public impediments are those which of their own nature or in fact are known to the greater number of people in the parish, and can be proved by witnesses; occult impediments are those which can not be proved by the evidence of two witnesses.

The second question was answered above, p. 322.

3. How can a dispensation become invalid by subreption or obreption?

Subreption is the omission of what should be mentioned; obreption is a false statement. Subreption or obreption in the petition for a dispensation render it invalid if they occur in the motive cause, not if they occur in the impulsive cause for granting a dispensation.¹

1 Manual of Moral Theology, vol. ii, 342.

However, dispensations minoris gradus are granted by the S.C. on the discipline of the Sacraments ex motu proprio et ex certa scientia, and are not invalid on account of subreption or obreption.²

4. How many dispensations are required in the case; what causes may be alleged by Caius; what is to be done by Caius?

There is the prohibitory impediment of mixed marriage, the public impediment of consanguinity in the third degree mixed with the second in the collateral line, and the occult impediment of affinity ex copula illicita in the first degree of the collateral line on account of the sin with Bertha.

As Titia is not a Catholic no account can be taken of her in asking for a dispensation. Putting a stop to grave scandal, and open and incestuous concubinage, may be alleged as causes for a dispensation. The marriage in bad faith before the Protestant minister should also be mentioned, though it may make the dispensation more difficult to obtain. Caius should first ask the bishop for a dispensation for the mixed marriage, and the impediment of consanguinity, without mentioning the occult impediment. He should then apply to the Penitentiary in Rome for a dispensation from the occult impediment, mentioning the other public impediments in the case.¹

1 Normae Peculiares, Sept. 29, 1908.

1 Gasparri, De Matrim., vol. i, n. 327.

Two first cousins desire to be married. The reason they advance for so desiring is that a child has already been born to them. Through their pastor they apply to the Holy See for a dispensation super impedimento consanguinitatis in secundo gradu aequali. But before the arrival of the dispensation, the man changes his mind about marrying his cousin, and marries another girl. After some time his wife dies, and he now desires again to marry his cousin. The dispensation that he sought from the Holy See in the first instance is now over a year old. Is it still available?

Answer.—The dispensation is available or holds good still, whether the pastor has fulminated it already or not. In case the dispensation has never been fulminated, it may be fulminated now. In case it has already been fulminated, the parties in whose favor it was granted may still make use of it. The reason that the dispensation is still good, although over a year has elapsed since it was granted, and although the parties made no use of it when it was granted, is that nothing has happened since the dispensation was granted which would invalidate it. This dispensation is known in Canon Law as a rescript non tantum gratiae faciendae, sed gratiae factae. There exists this distinction between a gratia facienda and a gratia facta, that the former expires with the death of the superior granting it, if the case has not yet been opened, or, as they say in the law, re adhuc integra; while a gratia facta takes effect as soon as it is granted and the papers signed and sealed, and is not extinguished by the death of the grantor. If this papal dispensation, granting these two first cousins permission to marry were a rescriptum gratiae faciendae, it would become invalid if the Pope died before it was fulminated. But, as it is considered a rescriptum gratiae factae, it would still be good even though in the meantime the Pope had died. Besides the death of the Pope, however, there are other causes that may invalidate papal rescripts, even rescripts containing favors. Such causes are:

( 1 ) If the motive for granting the favor or dispensation ceases;

(2) The implied or expressed revocation of the rescript by the one granting it;

(3) The implicit or explicit renunciation of the favor by those to whom it was granted.

Now, in the case here submitted, none of these causes are verified and, therefore, the rescript is still valid. The motive for granting the dispensation was the existence of a child, born to these first cousins outside of wedlock. But that reason still holds good. The child is still living. There is no question of the Holy See having revoked the dispensation, since such a revocation is not presumed in law, but must be proved. Nor can it be presumed that the recipients of the dispensation have renounced their claims to it. That the man did not use it, when it was first granted, but married someone else, is not an implied renunciation of the dispensation. St. Alfonsus treats the question: "When is a tacit renunciation of a dispensation understood to have been made? Some say when the person dispensed does not use it for ten years, although able to do so, as Martin says. Others, such as Sanchez and Bordon, say when the person dispensed performs a contrary act—for example, if, after obtaining a dispensation to contract marriage with one woman, he then seeks to contract with another. But the Salmanticenses, with Suarez and Tapia, say that it must be held that by those signs a renunciation is in no way judged to have been made. Hence they say that one dispensed to contract marriage with one woman may rightly use that dispensation even after he has contracted with another who has died; or after he has emitted a vow of chastity, provided that a dispensation from the vow is afterward obtained." L. 1, 198.;

But suppose the child dies before these two cousins get married, may they still use the dispensation? If the child dies before the rescript is fulminated, then they cannot use it, as it becomes invalid. The pastor, in this case, is delegated by the Holy See to execute the dispensation. He cannot, however, validly execute the dispensation, except on the condition, which is either expressed in the rescript or at least understood, namely: si preces veritate nitantur. By this formula it is required that the motive for which the dispensation was granted still exist. This motive, in the present case, was the existence of the child, which was the sole reason urged why the dispensation should be granted. Now, if this reason no longer exists, the only reason for the dispensation disappears, and as it has not been executed, it becomes invalid. But if the child died only after the dispensation was executed or fulminated, then the cousins may still use it, because as soon as it is executed, it removes the impediment of consanguinity and enables the cousins to marry, and the impediment once removed, does not revive according to the rule of Canon Law: Factum legitime retractari non debet, licet casus veniat in quo non potuit inchoari. Reg. 73, in sexto. Therefore, this dispensation, being fulminatéd, has already produced its effect and cannot be retracted by a supervening fact, nor can the impediment of consanguinity, once removed, be revived.

A week before her marriage with Titius, Bertha made a general confession in a monastic church. Her confessor discovered an impedimentum dirimens, viz., affinitas ex copula illicita cum sponsi consanguineo in secundo gradu. He pointed out this impediment to her marriage, and invited her to come to him again before it took place, in order that he might obtain authority to give her a dispensation. Bertha promised to come, but did not keep her word, and her confessor, Justinus, did not see her again until a fortnight after her wedding, when she apologized for not having come on the appointed day, because she had been prevented from doing so, and thought she could come later to receive her dispensation. Justinus was doubtful whether he could still make use of the authority asked and received three weeks before, but, having made up his mind, he told her that the dispensation was not valid, and, as her marriage was therefore null and void, he forbade her to live as a wife with her husband, until a fresh dispensation had been obtained and given to her.

The question arises: (1) Was Justinus right in declaring the first dispensation to be null and void? (2) Was he justified in forbidding Bertha to live with her husband?

Answer to (1).—The dispensation was given in forma commissoria, not in forma gratiosa, and the former removes the impediment only if it is given by the Commissarius to the person concerned.

The impedimentum dirimens existed therefore at the time when Bertha went through the form of marriage, and rendered it invalid. Justinus had authority to grant a dispensation from the impediment before the marriage; did he possess the same power after it had been solemnized? He concluded that he did not possess it, and we believe him to be right. The ordinary had authorized him to dispense in ordine ad matrimonium contrahendum; but matrimonio contracto the dispensation obtained by Justinus stands on a level with a dispensatio subreptitia. According to Laymann (Theol. mor., lib. I. tract. IV. cap. xxii. n. 19) rescripts of favor are judged surreptitious whenever they were obtained through silence about a truth intrinsically pertinent to the matter in itself, if the superior, had the truth been expressed and understood, probably would not have granted the dispensation or favor, or certainly would not have granted it in that form and manner, but with an added condition and burden. The dispensatio super impedimentum affinitatis is essentially different matrimonio contracto from what it is ad matrimonium contrahendum. The Council of Trent (sess. 24 de reform. matr., cap 5) gave the following decision on this subject: If anyone knowingly presumes to contract marriage within the prohibited degrees, let him be separated and deprived of hope of obtaining a dispensation. And this should apply much more to one who dared not only to contract but also to consummate the marriage. But if he did it in ignorance, and if he neglected the required solemnities in contracting marriage, let him be subjected to the same penalties. For he is not worthy readily to experience the kindness of the Church, whose salutary precepts he rashly despised. But if, after the solemnities have been employed, some impediment is afterward discovered to exist of which he had probable ignorance, then he can more readily and gratuitously be dispensed.

To obtain a dispensation from the tmpedimentum affinitatis is therefore much more difficult after the marriage, though invalid, has taken place than before. It is not granted in the same form or under the same conditions, and the things required of the persons dispensed are different. Therefore to regard a dispensation, granted in ordine ad matrimonium contrahendum, as applicable to a marriage that took place before the dispensation was granted, is a mistake; such a dispensation is equivalent to a dispensatio subreptitia, and, like it, has no force. If a dispensation is sought after a marriage has been invalidly concluded, and no mention is made of the fact that the marriage has already taken place, the dispensation, if granted, is invalid. The authority given to Justinus to grant a dispensation to his penitent, so that the marriage might take place, became invalid as soon as Bertha went through the marriage ceremony in spite of the diriment impediment.

In the instructions issued by the S. Congregation de Propag. Fide, May 9, 1877, a list is given of things that must be stated when application is made for a dispensation, "so that, even if the truth is concealed or a falsehood is related through ignorance, the dispensation is rendered null"; and amongst these things in no. 6 mention is made of "the various circumstances, namely, whether the marriage is to be contracted or has been contracted; if already contracted, it must be disclosed whether in good faith at least on the part of one party, or with knowledge of the impediment; if in bad faith, at least of one party, or with knowledge of the impediment."

Since, then, the dispensation is invalid, if, in the request for it, the fact that the marriage has already taken place is not mentioned, it follows a pari that a dispensation, granted in ordine ad matrimonium contrahendum, loses all value as soon as the marriage takes place in spite of the diriment impediment, which still exists, because the persons concerned have not received the dispensation.

It is not necessary to state whether the marriage between Bertha and Titius has been consummated since Leo XIII promulgated the new regulation on June 25, 1885.

Answer to (2).—Justinus forbade his penitent, whose marriage was invalid, to live with her husband until the dispensation was procured and given to her. This was certainly the proper course for them to follow, if any excuse could be found for their separating temporarily. But it would very seldom happen that such a pretext could be found, especially in the case where the woman was the person affected. She would naturally return to her husband after making her confession, and would continue to live with him. To forbid her all conjugal intercourse with him might have most disastrous results. What ought a confessor to do under such circumstances?

Let us consider a somewhat similar case. If the man and woman are already in a church, and if everything connected with their marriage is prepared, so that their union cannot well be put off, St. Alphonsus (lib. VI. n. 613) considers that the priest may proceed with the ceremony, even though at that moment he discovers a diriment impediment. "But if the most grave danger of disgrace or scandal could be avoided in no other way, the pastor or another confessor could declare that the law of the impediment does not bind in that case, because a law ceases when it is harmful rather than useful. And although here the purpose of the law does not cease in general but only in the particular case, nevertheless, since the purpose of the law ceases in the contrary direction, the law also ceases, as all agree." (Cf. Salm. de Leg., c. 4, n. 6.)

If the law is not to be regarded as binding in the case mentioned by St. Alphonsus, it was, a fortiori, not binding in this case, in which the difficulties, the gravissimum periculum infamiae aut scandali, were still greater. We think, therefore, that Justinus ought to have required Bertha at once in the confessional to renew her consensus in matrimonium cum Titio, unless she was in a position to make some excuse for leaving her husband for a few days, to pay a visit to a friend, or something of the sort. She was probabiliter capable then of giving a valid consent to her marriage, probabiliter therefore on her part her marriage was duly concluded when the consent was renewed, and there is no need therefore to trouble her with regard to the debitum. If she were to question Justinus further on this point, he would have to say that she and her husband might thenceforth live as man and wife, but in all probability she would not ask anything of the kind, as ignorant people, of the class to which Bertha apparently belongs, do not regard conjugal intercourse, in such a case, as fornicatio. Justinus ought to have told her to come to confession again very soon. St. Alphonsus goes on to say (l. c.): "The authors nevertheless note that as soon as possible—at least for greater security and to preserve the reverence due to the laws of the Church—recourse must be had to the Sacred Penitentiary, so that a dispensation may be obtained from it." Justinus should therefore at once apply to the S. Poenitentiaria, explaining all the circumstances and asking for a dispensation. After it is granted to Bertha, she must once more conditionally renew her consensus, as probabiliter the marriage can only now be concluded. Titius may be assumed to abide by his previously given consent, and as, in such a case, it would hardly be possible to tell him that his marriage was invalid, and to ask him to make a renovatio consensus, it is enough to secure the validity of the marriage if Bertha renews her consent, and Titius abides by his own, renewing it implicitly by proofs of conjugal love, many of which are enumerated by theologians.

It appears, from the form in which the dispensation is generally granted, that an agreement of this kind is not expedient if very great difficulties would arrive in case the innocent party became aware of the impediment to the marriage. As a safeguard the following clause is added to the dispensation: but if this notification cannot be made without grave danger, consent having been renewed according to the rules handed down by approved authors. Justinus would adopt the best and safest course if he aimed at sanatio in radice; as Bertha knows of the impediment to her marriage, she must renew her consent at the sanatio in radice; for in this case, as Lehmkuhl points out, it is not a perfect radical sanation, but only the consent of the other, ignorant spouse is healed at its root (P. II. n. 831; cf. n. 825 sqq.).— Dr. Huppert.

On February 25, 1890, the Bishop of Nicotera approached the Poenitentiaria with reference to this clause, and asked for a more precise definition of the amount and length of such a poenitentia gravis et diuturna. “In view of the corruption increasing daily and also the bad will of those with whom dispensation is granted, who promise with their lips what afterward they by no means actually observe; and in view also of the impossibility in which they are sometimes situated, the question is asked: Can a penance be imposed for only three months but several times a week when a grave and long-continued penance has been prescribed, and for one month when a grave salutary penance has been established?”

In answer to this question the Poenitentiaria gave no detailed explanation of what was to be considered a poenitentia gravis et diuturna, but issued only the following general instructions: “In determining the quality, gravity, duration, and so forth of the penance—matters left to the judgment of the dispenser or delegate in conformity with law—neither the limits of severity nor those of humanity are to be exceeded, and account is to be taken of the condition, age, infirmity, office, sex, and so forth of those upon whom the penalty is ordered to be imposed.” d. 8 April, 1890.

According, therefore, to the S. Poenitentiaria, every confessor applying for a dispensation, is empowered to use his own judgment in imposing a penance, which, taking the circumstances into consideration, shall be regarded as gravis or diuturna. It would be a mistake to impose as penance in such cases only a few Our Fathers, since experience shows us that too easy a penance is apt to make penitents think lightly of their transgressions; but, on the other hand, especially at the present time, we must not err on the side of excessive severity. The first principle in imposing a penance must always be that the penitent should not be frightened away from the confessional, but should be confirmed in his resolution to make frequent and good confessions in future. In determining the gravitas poenitentiae we ought not to refer to obsolete precepts; there is no reason for thinking that the gravis poenitentia salutaris required by the Poenitentiaria need differ in kind from severe and wholesome penance now usually imposed for grievous sin. Nor need the poenitentia diuturna be measured by years or months; it is simply a penance to be continued for some time, at least for some days. Under certain circumstances a penance lasting fourteen, nine, or even three days may be regarded as diuturna in the sense in which the word is used by the Sacred Congregation. In very few cases ought a penance to be imposed that would last for a year or for several months, even if the penance had not to be performed daily, but only once a week or once a month. The bridal couple may be willing to promise anything, but they will not keep their word, and, once married, they may never trouble about the matter. It is not advisable to impose frequent confession as a penance upon persons who hitherto have only gone to confession at Easter. Circumstances vary so much that we can understand why the S. Poenitentiaria let the matter rest, after giving the decision quoted above, and did not make any direct reply to the question asked by the Bishop.—Professor Johann Ackerl.

Case.—David and Lucilla were lawfully married in 1913, but they never lived together and the marriage was not consummated. David learned that Lucilla had been unfaithful to her marriage vows, and he obtained a divorce. Lucilla then married George, the co-respondent, before a civil magistrate. To this union several children were born. Subsequently George and Lucilla, repenting of their evil course of life, renewed their marriage consent before their parish priest, after a dispensation super matrimonio rato et non consummato had been granted, as David was still living. Question:

1. What is the impediment of crime?

2. What is the law regarding dispensation from this impediment?

3. Was the marriage of George and Lucilla invalidated by the impediment of crime?

Solution:

1. The diriment impediment of crime arises in three cases: (a) between those who in order to marry have conspired against and murdered the husband or wife of one of the parties; (b) between those who have committed adultery together and also promised or attempted marriage, during the life time of the injured husband or wife; (c) between adulterers, one of whom murders the injured spouse in order to contract marriage with the partner in guilt.

2. Since this impediment was established by ecclesiastical law, the Church may always dispense from it. In case of public homicide, however, it is never dispensed. When adultery has been joined with attempted marriage, the dispensation is granted only for grave reasons. The impediment is not incurred by infidels, but it holds if one of the parties is Christian. Whether ignorance of the impediment excuses is a disputed question, but the negative view is the more common. For while the impediment is intended as a punishment, the chief purpose of the Church is to remove the reason for such crimes by rendering the guilty ones disqualified for marriage. It can easily happen, though, that the impediment arising from adultery and attempted marriage be overlooked by those who, seeking to have their civil marriage validated, ask for a dispensation super matrimonio rato et non consummato, or a declaration of liberty on account of the presumed death of the former consort. Hence the Church, in order to prevent the danger of invalidity, has provided that in such cases the dispensation from the impediment of crime, so contracted, shall be considered as granted through the concession of the dispensation or declaration sought for. (S.C. Sacr. 3 Junii, 1912.) This decree is retroactive and grants the revalidation and sanation of any marriage that had for this reason been invalid before.

3. The first marriage of George and Lucilla was of course invalid. Moreover, it induced the impediment of crime. For from what was said in the first paragraph under (b) it follows that this impediment results when a divorced person contracts and consummates a civil union during the lifetime of the lawful spouse; so that even after the former husband or wife has died, the second marriage cannot be revalidated without a dispensation. However, the second marriage of George and Lucilla was valid. The’ dispensation granted them included the dispensation from the impediment of crime.